2023 (9) TMI 1481 - HC - Customs

Imposition of penalty of u/s 112 and Rs. 20,00,000/- u/s 114AA of the Customs Act, 1962 - appellant colluded with the proprietor of M/s Shankeshwar Impex Pvt Ltd. in the attempt to remove the imported goods on the basis of forged documentation - mutual interest - HELD THAT - As would be manifest from the aforesaid findings, the Principal Commissioner of Customs, ACC Imports Commissioner essentially came to conclude that merely because the three witnesses had not turned up for the purposes of cross-examination, that would not detract from the complicity of the appellant which was otherwise evidenced from the material gathered in the course of investigation. The CESTAT also found favour with the conclusion drawn by the Commissioner that the persons who were sought to be cross-examined were all co-noticees and thus it would appear to be in their mutual interest and benefit of the co-accused not to respond to the notices issued to them. The CESTAT also noticed that the appellant had in his own statement admitted to his involvement in the attempted removal of goods on 28 July 2017. It also found no ground to interfere with the view taken by the Commissioner that merely because the appellant was not in Delhi on the relevant date, the same would constitute a ground sufficient to absolve him. The Adjudicating Authority has even otherwise found that the CDR would indicate that the appellant was in contact with the abettors on the fateful day. The CESTAT appears to be correct in having accepted the case of mutual interest of the abettors to impede the investigation and refusing to extend cooperation. In such a situation, the respondent would be justified in proceeding further with the investigation based on the material that exists. In any case, the order impugned does not give rise to any question of law. Appeal dismissed.

Summary

Issues involved: Appeal against imposition of penalty under Section 112 and Section 114AA of the Customs Act, 1962 based on alleged involvement in attempted removal of imported goods using forged documentation.

Summary:
1. The appeal challenged the order of the Customs, Excise & Service Tax Appellate Tribunal upholding the penalty imposed on the appellant under Section 112 and Section 114AA of the Customs Act, 1962. The appellant, engaged by a company for customs clearance work, was accused of attempting to remove goods based on forged gate passes without filing Bills of Entry or paying customs duty.

2. The appellant was alleged to have introduced a representative to a Customs House Agent for clearance of goods using forged documentation. The investigation revealed attempts to remove goods with fake gate passes and Bills of Entry, leading to suspicions of collusion with the company involved.

3. The first attempt to remove goods was made in July 2017, with subsequent efforts to cover up the wrongdoing by producing additional documents. Documents related to "Assorted Silver Jewellery" were found during a search of the company's premises, supporting the collusion allegations.

4. Despite denying involvement, the appellant requested to cross-examine certain individuals, who did not respond. The Adjudicating Authority allowed the opportunity but proceeded with the case due to non-cooperation. The appellant claimed to be in a different state on the date of the incident, supported by Call Detail Records.

5. The CESTAT upheld the penalty, noting the non-appearance of witnesses for cross-examination did not invalidate their statements. The Commissioner found evidence of the appellant's involvement in the attempted removal of goods, supported by interactions with accomplices and call records.

6. The CESTAT agreed with the Commissioner's conclusions, emphasizing the mutual interest of co-accused in avoiding cooperation. The appellant's admission of involvement and communication with accomplices on the day of the incident were considered incriminating, leading to the penalty under Section 112 and Section 114AA of the Act.

7. The CESTAT's decision was based on factual findings and evidence appreciation, finding no legal grounds for interference. The appeal was dismissed, upholding the penalty imposed on the appellant for his role in the attempted removal of imported goods using forged documentation.