TaxTMI 
TaxTMI 
2025 (1) TMI 1461
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....n the import and trading of lab equipments. It appointed Raj Kumar Pal of M/s Complete Forwarders and M/s Complete Logistics as its Clearing and Forwarding Agent for undertaking complete logistics, including customs clearance. The appellant used to pay all charges, including customs duty, to Raj Kumar Pal by banking channels; (ii) Raj Kumar Pal arranged the delivery of goods and provided copies of the customs assessed Bills of Entry and the bank attested challans reflecting payment of customs duty; (iii) During a search at the office of the appellant on 04.11.2015 by SIIB, the appellant provided the Bills of Entry and TR6 challans given to the appellant by Raj Kumar Pal; (iv) Statement of Sushant Gupta, Director of the appellant company was also recorded. He stated that M/s Complete Forwarders Pvt. Ltd. and M/s Complete Logistics undertook all clearance related work till April 2014, after which payment was made directly to Customs through online facility; (v) Raj Kumar Pal explained that the modus operandi followed by him was to create forged documents and these documents were provided to the appellant. The duty of customs was paid on import invo....
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....ed by the Settlement Commission, as has been reproduced in paragraph 5.2.7 of the impugned order dated 29.08.2018 passed by the Commissioner, is reproduced below: "30. Shri Sushant Gupta, Director, of both the applicants in his statement dated 4.11.2015 informed that Shri Raj Kumar Pal owner of M/s Complete forwarders Pvt. Ltd and M/s Complete Logistics was handling their entire work of Custom clearance of M/s Spectro Analytical Lab Ltd up to September 2013 and of M/s Spectro Lab Equipment Pvt Ltd up to April 2014. Enquiries conducted in respect of M/s Complete forwarders Pvt Ltd and M/s Complete Logistics revealed that the firms were not found existing on the given address. Shri Raj Kumar Pal was not found at given address, but surprisingly he appeared before Custom officers when contacted on mobile no 9811684222 provided by Shri Sushant Gupta in November 2015. Before this date, as per the SCN, Shri Raj Kumar Pal had already defrauded M/s Spectro Lab Equipment Pvt. Ltd for an amount of Rs 1,19,54,241/-, The appearance of Shri Raj Kumar Pal before the Customs officers after he had defrauded M/s Spectro Lab Equipment Pvt Ltd for, an amount of Rs 1,19,54,241/-, in response t....
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....I further state that upon delivery of the import consignment Shri Raj Kumar was raising bills upon us which includes Custom duty paid for the consignment, handling charges, his own service charges and also any other amount payable to Airlines or Custodian. I state that the payment for each bill raised by Shri Raj Kumar was made by us through cheque" Accordingly, the co-applicant was asked to submit his Bank statement. The same was not submitted and the Advocate of the co-applicant during the hearing held on 29.3.17 stated that he has not been able to procure the bank statement though Shri Raj Kumar Pal visited the bank a number of times and their bank has not provided the statement to him saying that the account has been closed in the year 2014. It was also Informed by Shri Arora, Advocate that he does not know the Bank Account number of Shri Raj Kumar Pal. ***** 37. This leads us to conclude that M/s Spectro Lab Equipment Pvt Ltd deliberately and in a very systematic and planned manner arranged to submit doctored and forged documents to evade Custom duties. The role of the co-applicant Shri Raj Kumar Pal as it emerges from the foregoing is that of a dumm....
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....e SCN). On the contrary Shri Sushant Gupta, Director of the importer firm, in his statement 23.12.2015 admitted the fact even if the forgery was committed by Shri Raj Kumar Pal, they will discharge their duty liability along with interest. This fact was also accepted by them in the submission made in the Settlement Commission while filing application for settlement of the case. I find that the importer have admitted and discharge their duty liability. They vide their reply dated 16.04.2018 also claimed to have paid some amount towards their interest liability. The details of amount claim to have paid by the importer is refurnished below:- S.No. Challan No. & date Amount (in Rs.) Remarks 1. 731897 dated 06.11.2015 50,00,000/- Deposited during investigation (as mentioned in the SCN) 2. 737709 dated 01.01.2016 25,00,000/- Deposited during investigation (as mentioned in the SCN) 3. 739866 dated 16.02.2016 44,54,241/- Deposited after issuance of SCN 4. 742147 dated 04.04.2016 43,20,421/- Deposited after issuance of SCN (interest portion) I find that even in para 15 of their reply dated 16.04.2018, Noticee No.....
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....g to Rs. 50 Lakhs towards their duty/interest liability. I further find that Shri Sushant Gupta, Director of the noticee No. 1. during his statement dated 23.12.2015 undertook to deposit the whole amount of short paid duty along with interest applicable and requested to issue Show Cause Notice to enable them to approach Settlement Commission for settlement the case. ***** 5.4.5 I find that all the noticees had approached the Settlement Commission for settlement the case and requested for grant immunity from prosecution and penalties proposed in the SCN. From examination of the documents, Bank statement and material facts submitted by the noticees during investigation and in the Settlement Commission I find that: (a) Noticee No. 1 handed over all the documents for clearance from Customs to Shri Raj Kumar Pal, who has admitted that he used to change the value of the goods in the invoice and hand over the altered invoices to CHAs who would file Bills of entry for lower value based on doctored invoices. (b) as per the enquires made by the officers of the SIIB, both the firm of Shri Raj Kumar Pal i.e. M/s Complete Logistics and M/s Complete forwarders....
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....ation of these bank records, for limited period, it was found that payments made by Noticee No. 01 to Shri Raj Kumar Pal could not be matched with each payment made Bills of Entry wise as claimed by Shri Sushant Gupta in his statement dated 04.11.2015. It was also found in many instances that the sums paid by Noticee No. 01 to Shri Raj Kumar Pal's firms through cheque were withdrawn in cash on the same day or immediately thereafter. 5.5 In view of the above material facts/evidences available and facts submitted before the Settlement Commission and discussed above, I find that that M/s Spectro Lab Equipment Pvt Ltd deliberately and in a very systematic and planned manner arranged to submit doctored and forged documents to evade Custom duties. The role of the co- applicant Shri Raj Kumar Pal as it emerges from the foregoing is that of a dummy planted to take the blame in a situation like the present one when the modus operandi of evasion of duty by Applicants' is detected and act as a buffer. In this view of the things, Shri Raj Kumar Pal does not appear to have actually masterminded the evasion of Custom duty but he has abated and committed the forgery on the sole d....
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....ces with whom he would have shared his illegal gains. In fact, Raj Kumar Pal has been implicated in other cases of smuggling; (vi) The findings in paragraph 5.5 of the impugned order are beyond the show cause notice and the evidence on record; (vii) The penalty under section 114AA of the Customs Act is unjustified, in the absence of any evidence to show that the appellant signed or caused to sign any false documents. (viii) Raj Kumar Pal was not an employee of the appellant. He was also not authorized for performing any unlawful acts. These were done by him, on his own account. The appellant cannot be penalized for the unauthorized acts of an agent; (ix) No enquiries have been made, by the Department as to how Raj Kumar Pal obtained the original stamp of the Superintendent of Customs and the bank officials. Raj Kumar is a regular offender and has been penalized in several other cases and the appellant is a victim of his illegal acts; (x) The appellant had filed a police complaint. Despite several visits to the police station, the police failed to take any action against Raj Kumar Pal. There was nothing further, appellant could have done, beyond r....
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....he goods in respect of M/s Spectro lab Equipment; that he started changing the value reflected in the import invoices obtained from Airlines or from the importer by scanning the import invoices and then editing the same; that he used to lower the value reflected in the original invoices substantially and filed Bills of Entry on a value which was not the correct value of the goods under import; that the copy of Bills of Entry generated from Customs was never handed over by him to the importer as it was filed on incorrect and lower value, that he used to prepare forged copies of Bills of Entry in his office reflecting the actual value of each import consignment and used to generate the print out reflecting the actual particulars of import consignment ..... he admitted that what he charged from the client was this higher element of customs duty and not the actual element of customs duty paid to customs; on being pointed out that his act tantamounted to fraud on Government exchequer as the actual Customs duty was charged by him from the client but the lesser customs duty was paid, he stated that as admitted earlier, he required money to establish himself in the busine....
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..... The appellant had filed a complaint against Raj Kumar Pal before the Station House Officer of the concerned Police Station on 11.02.2016 and the same is reproduced below: "Date: 11.02.2016 The SHO Sub:- Complaint of fraud and forging of official customs documents against Sh. Raj Kumar Pal R/o 1-3, Pocket-2, Sec 7, Dwarka, New Delhi, Sir, It is stated that the complainant Prashant Gupta S/o Shri Ashok Gupta, R/o W-66, Greater Kailash, Part-II, New Delhi 110048 is one of the Director of M/s Spectro Analytical Labs Ltd., E-41, Okhla Industrial Area, New Delhi-110020. M/s Spectro Analytical Labs Ltd is engaged in import of goods and their trading in India. They also undertake other business work. We had engaged Sh. Raj. Kumar Pal owner of M/s Complete forwarders arid M/s Complete Logistic, 847/1, Ground Floor, Mata Chowk, Main Vasant Kunj Road Mahipalpur, New Delhi for customs clearing-work. For Customs clearances, we used to handover original invoice and other documents to Sh. Raj Kumar Pal who filed Bill of Entry in Customs, Paid Customs duty and other charges and then raised bill on us which was paid mostly th....
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....r the crime of fraud and recovery of the amount defrauded. The appellant have to deposit the amount of duty demanded with interest and has deposited Rs. 25 Lakhs already and shall have to pay the balance with interest." (emphasis supplied) 17. The Commissioner has expressed concerns in the impugned order as to why Raj Kumar Pal had appeared before the authorities after he had substantially defrauded the appellant and as to why the appellant lodged a police complaint instead of a First Information Report and as to why the appellant had not instituted a civil suit against Raj Kumar Pal for recovery of the amount. The Commissioner, for these reasons, concluded that the appellant had deliberately and in a very systematic and planned manner arranged to submit doctored and forged documents to evade payment of customs duties and Raj Kumar Pal was a dummy planted by the appellant. It is for this reason that the Commissioner imposed penalties upon the appellant under sections 114A and 114AA of the Customs Act. 18. Such a finding has been recorded by the Commissioner on the basis of conjectures and surmises. There is nothing on record to indicate that the appellant and Raj Kumar Pal....