TaxTMI 
TaxTMI 
2025 (6) TMI 543
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....ng of ozone depleting substance i e Refrigerant Gas (HCFC-22). 2. The Bill of Entry No.9865457 dated 16.04.2013 was filed by the importer, M/s. AMP Enterprises declaring the goods as 3000 cartons of A4 Copier paper with declared assessable value of Rs.13,30,776/-and after assessment on the basis of 10% examination by Customs at ICD,TKD, the consignment was cleared from Customs on payment of customs duty amounting to Rs.2,91,829/-. Based on the intelligence received by DRI that that M/s AMP Enterprises had imported restricted items by concealing them in 20 feet containers bearing no.CRXU 1551372 and GCUU 3009545, clearance of these containers was put on hold at ICD, TKD. On 20.04.2013, the said two containers were examined by DRI under a Panchama in the presence of representatives of Customs and CONCOR, Shri Gulshan Singh, proprietor of M/s AMP Enterprises, Shri Prahlad Singh CHA and Shri Dinesh Kumar Badpolia G- Card holder who filed the bill of entry. The examination of the containers led to the recovery of 1504 cylinders containing 13.6 kgs, each of refrigerant gas which were concealed behind 472 cartons of copier paper. The undeclared goods, refrigerant R-22 gas filled cylinder....
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....ri Prahlad Singh, CHA and Shri Dinesh Kumar Badopalia under Section 112(a) of the Customs Act; (5) I drop the proceedings initiated against Shri Chandan Kumar Jain, Deputy Commissioner under the Customs Act,1962." 4. The appellants have filed separate appeals before this Tribunal. To complete the facts, against the dropping of penalty on Shri Chandan Kumar Jain, the Revenue had preferred an appeal before this Tribunal, which was rejected and further appeal to the High Court was withdrawn vide order dated 19.02.2024 on account of low tax effects. 5. We have heard Mr. Kamaljeet Singh, learned counsel for Shri Rupinder Singh Chadha, Shri Rajiv Tuli for Shri Sandeep Kumar Moria, Shri G.S. Arora for Shri Prahlad Singh CHA and Dinesh Kumar Badopalia, and Shri Rakesh Kumar, the learned authorised representative for the Revenue. 6. Since no appeal has been filed by M/s AMP Enterprises, its proprietor, Shri Gulshan Singh and Shri Manish Jalhotra, the order of confiscation of the declared and un-declared goods stands confirmed. The issue before us in these appeals is, therefore, limited to the levy of penalty imposed on the appellants herein, however, for the purpose of evaluating wheth....
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....nish Jalhotra, Shri Rupinder Singh Chaddha, Shri Dinesh Kumar Badopalia and Shri Sandeep Kumar Moria had a joint meeting at McDonald in Kamla Nagar, New Delhi on 12.04.2013. The details of the meeting came to light from the statement of Shri Dinesh Kumar Badopalia and which was further linked by the statements of other accused persons. 9. The statement of Dinesh Kumar was recorded on 19.04.2013, which was before the date of examination of the goods. The chronology of events which emerged from his statement is that :- On 11.04.2013 he received a call from one Shri Vikas, who asked him to do the customs clearance work as he had imported paper from Malaysia and the container has reached ICD, TKD. On 12.04.2013, the meeting took place at McDonald restaurant, Kamla Nagar, where three other persons were present, one of which was a Sardarji. Shri Dinesh Kumar, gave the description of other persons. As regards the clearance of the containers, he informed Shri Vikas that he would be charging Rs.12,000/- per container. On 13.04.2013, Shri Gulshan proprietor of M/s AMP Enterprises contacted him and handed over the papers for the two containers, invoice/packinglist/certificate of region....
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....ould only manage to sign. He was working in a car repair workshop at Krishna Park with his brothers and the firm, M/s. AMP Enterprises was opened in January 2013, where he was the proprietor. 13. Shri Chandra Bhanu Singh Patwal, the employee of Dinesh Kumar was examined on 26.04.2013, where he stated that he had been working with „G Commerce‟ of CHA Shri Dinesh Kumar, however, Dinesh Kumar did not have CHA license and had been working by using license of other CHAs and he had been entering ICD, TKD by getting daily passes. He admitted that though he did not possess any „G‟ or „H‟ Card yet he signed the documents. 14. As a follow-up DRI officers visited the premises of McDonald restaurant on 27.04.2013 along with Shri Dinesh Kumar and checked the CCTV footage recorded on 12.04.2013. Shri Dinesh Kumar confirmed that the three persons appearing with him were the same whom he met in connection with the imports of copier paper/R-22 refrigerant gas which was seized on 20.04.2013 at ICD, TKD. In a statement recorded on 13.06.2013, Shri Dinesh Kumar stated that Sardarji in photograph informed that the import consignment of photocopier paper arrived at ....
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....l Bagh when Rupinder Singh Chaddha joined them. Then all of them sat in blue coloured Honda City Car, which was being driven by some driver. Regarding the meeting at McDonald‟s, he stated that he had gone to place order for food for three persons and when he was getting the food, he saw Shri Vikas Gupta and Shri Rupinder Singh Chaddha talking to one more person who was in the photograph, after the food, all of them went outside McDonald and sat in the car of the said fourth person when Shri Vikas Gupta introduced him and Shri Rupinder Singh Chaddha to that person who handed over his visiting card to Shri Rupinder Singh Chadha. Thereafter, he and Rupinder Singh Chaddha came out of the car and Vikas Gupta and that person talked with each other for about five minutes, then Vikas also came out of the car and that person drew away with the car alone. Shri Vikas and Rupinder Chaddha dropped him at Kamla Nagar market. 17. The Department then conducted a discreet enquiry regarding the fourth person who was present at McDonald on 12.04.2013 and it was revealed that the said person was Shri Sandeep Kumar Moria. Statement of Sandeep Moria was recorded on 9.07.2013, where he stated that....
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....3 between Shri Rupinder Singh Chaddha and Shri C.K. Jain, Deputy Commissioner regarding the impugned consignment which clearly revealed that Rupinder Singh Chaddha was actively involved in the clearance of the goods. As noted by the Adjudicating Authority, in the said recorded conversation, he could be heard talking and discussing about the strategy that he had planned, according to which he would record his statement if called by DRI and when his statement was recorded on 13.06.2013, he actually took the same stand before DRI, which clearly reflects about the modus operandi adopted by him in manipulation of the transaction. The incriminating portions of the said recorded conversation as noted in the impugned order are set out below:- "B: I am nowhere sir... I am nowhere.... We are nowhere.. hamara koi matlab nahi hai..agar koi DRI humare pass aati bhi hai to...humara yeh hai ki bhai yeh manish hai..isko main jaanta hun...isne mujhe kaha ki hum McDonalds chalte hain...mujhe kisi se milna hai..ab woh aage kisi CHA se mile ya kisi don se mile.. B. nahi.. we are..we are.. we are.. agar in case mujhe bulate bhi hai.. is case, video ke upar..video ke upa hi bula sakte hain otherwise....
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.... Chaddha interacted with Shri Manish Jalhotra. Similarly, the call details of the mobile number, subscribed to Shri Dinesh also revealed interaction between him and Manish Jalhotra. The call details of the mobile number of Shri Gulshan Singh revealed interaction between him and Shri Manish Jalhotra and also Shri Dinesh Kumar Badopalia during the relevant period. This is sufficient to show the connection and the nexus between the parties, which otherwise they were trying to hide. 23. The parties have deliberately attempted to conceal the identity of Shri Manish Jalhotra and the relevant para from the impugned order clearly reflects so, which is quoted below:- "46. Further statement of Shri Gulshan Singh was recorded under Section 108 of the Customs Act, 1962 on 10.09.2013 (in response to summons dated 05.09.2013) wherein he interalia stated that the company in the name of AMP Enterprises was opened by Shri Vikas Goel in his name; that Shri Vikas Goel was the actual owner of the said company and he had nothing to do with the goods imported in the name of the said company, that he did not know the supplier of the goods; that he had not financed the import of the goods and it was Sh....
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....onths." 24. On the basis of the aforesaid, the Adjudicating Authority had drawn the entire chain of transaction as under : - "55. From the foregoing, it also appeared S/shri Manish Jalhotra and Rupinder Singh Chaddha entered into a conspiracy to smuggle restricted R-22 Gas cylinders in the guise of Copier paper in container nos.CRXU 1551372 and GCUU 3009545 under Bill of Entry no.9865457 dated 16.04.2013 in the name of M/s.AMP Enterprises. In a bid to camouflage the true identity of the importer, Shri Manish Jalhotra impersonated and assumed the pseudo identity of one Vikas (as preplanned) and engaged the services of Shri Dinesh Badopalia through Shri Rupiner Singh Chadha. He lured Shri Gulshan Singh, who was known to him, by promising pecuniary gains and caused Shri Gulshan Singh to open a firm in the name of M/s.AMP Enterprises which was used as a front company for the import and clearance of the impugned consignment. By using the mobile no.9811380381 of Shri Gulshan Singh, Shri Dinesh Kumar Badopalia was contacted for engaging him in the clearance of the impugned consignment. Call details, as discussed above, corroborates regular interaction between Shri Gulshan Singh and Shr....
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....M/s AMP Enterprises. (iii) Shri Rupinder Singh Chaddha Shri Kamaljeet Singh, the learned Counsel for the appellant submitted that appellant has been a victim of circumstances and has been roped in a false case. He has seriously challenged the recording obtained from the mobile phone as the conversation did not contain his voice and the voice sample given by him did not match with the voice on the taped conversation. He also submitted that the recording from the mobile phone has been tampered as the phone was seized by DRI on 13.06.2013 and all the available data was retrieved on the same day but the alleged taped conversation was not found in that. He also emphasised that CFSL report dated 15.07.2014 indicates the date of recording as 30.07.2013, which is much after the seizure of the phone on 13.06.2013. The learned Authorised Representative has denied the submissions and reiterated the findings of the Adjudicating Authority. 26. We find, that when the two containers were put on hold, the Department immediately recorded the statement of Shri Dinesh Kumar on 19.04.2013, whereby it was revealed that a meeting had taken place at McDonald restaurant in Kamla Nagar, where one Sard....
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....a aura age de diye." "ism eek simple si cheez hai unhone ek banda khada kiya Vikas Goel, jo main aadmi Hongkong me hai usi ka samaan bhi hai... .... .... Aur ye jo banda hai jiska IEC code hai isko unhone khada kiya hua hai... .... Isne haha hai maine sir company banai thi. " "agar koi DRI hamare pass aati bhi hai tow hamara ye hai ki bhae ye Manish hai isko main janta hu isne mujhe kaha hum McDonald chalet hai mujhe kisi se milna hai.. ... .... Ab vo aage kisi CHA se mile ya DON se mile.. ... ..... "kisi se mile mera kya matlab hai mai khud CHA hu... .... ...." The Adjudicating Authority, therefore observed:- "90.5 The above and several such other instances in the taped conversation indicate that the conversation completely related to the seizure case of the refrigerant gases. Very strong evidence emerges from the text itself that the quotes above were made by Shri Rupinder Singh Chaddha only, as in his various statements, he adopted the same version, planning for which is brought out in the taped conversation when the DRI recorded his statement on 13.06.2013. 28. One of the contentions raised by the learned Counsel challenging the taped conversation is that this conv....
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....hat is how the involvement of the appellant cannot be bifurcated with the other three persons, namely Rupinder Singh, Chaddha, Manish Jalhotra and Dinesh Badopalia who all had gathered there to somehow manage the clearance of the consignment. Reliance has also been placed by the Department, on the circumstantial evidence pointing to the past involvement of the appellant in the import of wiremesh and Shri Manish Jalhotra was also involved in the import of wiremesh. The appellant has not been able to discharge the burden of not being the part of the syndicate involved in the clearance of illegal imports and hence has been rightly penalised under Section 112 of the Act. 29. The learned Counsel for the appellant have also challenged the impugned order on the ground that they have not been granted an opportunity of cross examination and relied on the decision of the Apex Court in Andaman Timber Industries versus Commissioner of Central Excise, Kolkata-II, 2015 (324) ELT 641 (SC) . The Apex Court accepted the plea of serious flaw in denying cross-examination of the two witnesses on the ground that if the testimony of these two witnesses is discredited, there is no other material with th....
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....f cases. The principle that it is a matter of inference to be drawn from the surrounding circumstances and the conduct of the party concerned, is squarely applicable in the circumstances of the present case. The decision of the Delhi High Court was affirmed by the Apex Court 1992(59)ELT201(SC). 33. In similar circumstances, the Delhi High Court in Sudhir Sharma versus Commissioner of Customs 2015 (319) ELT 450 (Del.) had noted that the conclusion of the customs Adjudicating Commissioner did not rest on the various statements recorded under Section 108, only, but a very crucial element, which lent corroboration to those statements were the call detail records and in that context, referred to the decision of the Apex Court in Lal Singh versus State of Gujarat 2001(3)SCC 221, where it has been observed as under : "32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the persons concerned in it. However, this does not mean that the special or pe....