2019 (12) TMI 297 - AT - Customs

Clandestine removal - physical recovery of prohibited and mis-declared goods - it was detected that the item of import namely calcium carbonate was only used for concealment of other prohibited and undeclared items like firework and telescopic channels - HELD THAT - It s a matter of record that the import consignment covered by bill of entry No. 3132662 dated 2 November 2015 was filed for clearance of calcium carbonate and on physical examination of the cargo it was found to have fireworks and telescopic channels (of various sizes). It is also a matter of record that in all the above-mentioned appeals, the physical recovery of prohibited and mis-declared goods have not been denied. It is also a matter of record that originally the import consignment of both bill of entry No. 3132662 dated 2 November 2015 as well as the containers which were lying in the internal container depot for which no bill of entry was filed consignments were detected to have branded counterfeit spectacles and some other goods were imported by Shri Bhupesh Tyagi of M/s Swastic Trading Company and Director of M/s Royal D cor India Pvt. Ltd. He has been helped in this work by one Shri Sanjeev Singh Yadav and the work relating to clearance of the cargo was undertaken by CHA namely Shri Sunil Kumar of M/s Mouli Worldwide Logistics. It appears from the record that Shri Sunil Kumar has never interacted with the high sea sale buyers of the goods namely Shri Sanjay Gupta Director of M/s Sanco Industries Ltd. It is found that when the consignment was undertaken for examination and it was detected that the import consignment has been mis-declared and contains prohibited items, such as, fireworks etc. he has informed Shri Sanjeev Singh Yadav and also spoke to Shri Bhupesh Tyagi, however, he did not inform the customs authorities regarding the mis-declaration of the cargo. We also find that all the above appellants in their various statements have confessed to their involvement or have confessed to their misdoings which is also corroborated with the facts of the case. In this case, all the statements of the relevant persons get corroborated by the statements of co-accused persons and with the physical facts as detected by the investigations - no new facts or evidences have been adduced before us to impress that the amount of penalties imposed upon the above-mentioned appellants have been imposed in disproportionate to their role in attempted smuggling of prohibited and mis-declared goods into the country. There are no infirmity in the impugned order-in-original under challenge - appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Mis-declaration and smuggling of prohibited and undeclared items.
2. Role of individuals in the conspiracy.
3. Legitimacy of statements and evidence.
4. Appropriateness of penalties imposed.

Issue-wise Detailed Analysis:

1. Mis-declaration and Smuggling of Prohibited and Undeclared Items:
The case revolves around the mis-declaration of imported goods. Four containers, declared to contain calcium carbonate, were found to also contain fireworks and telescopic channels. The Directorate of Revenue Intelligence (DRI) investigation revealed that the actual contents included 26.488 M.T. of Chinese-made fireworks and 16.948 M.T. of telescopic channels, among other undeclared items. This mis-declaration was a deliberate attempt to smuggle restricted items into the country.

2. Role of Individuals in the Conspiracy:
The investigation identified a conspiracy involving several individuals. Shri Bhupesh Tyagi, proprietor of M/s Swastic Trading Company and director of M/s Royal Décor India Pvt. Ltd., was found to be the mastermind, collaborating with Shri Sanjeev Singh Yadav for monetary benefits. They roped in Shri Sanjay Gupta of M/s Sanco Industries Ltd., who regularly purchased calcium carbonate. The high sea sale agreement was a strategic move to reduce the chances of cargo examination. Shri Sunil Kumar of M/s Mouli Worldwide Logistics was also implicated for his role in clearing the mis-declared cargo.

3. Legitimacy of Statements and Evidence:
The appellants contested the validity of their statements, claiming they were obtained under duress. However, the tribunal noted that the physical recovery of mis-declared goods was undisputed, and the statements were corroborated by other evidence. The Supreme Court precedents cited (Naresh J. Sukhawani vs. Union of India and Commissioner of Central Excise, Madras vs. Systems & Components Pvt. Ltd.) supported the use of such statements as substantive evidence.

4. Appropriateness of Penalties Imposed:
The Commissioner’s order included rejecting the declared assessable value, confiscating the seized goods, and imposing penalties. The penalties were substantial, including ?50,00,000 on Shri Bhupesh Tyagi, ?25,00,000 on Shri Sanjeev Singh Yadav, and ?50,000 on Shri Sunil Kumar, among others. The tribunal found no new facts or evidence to suggest that the penalties were disproportionate, affirming the Commissioner’s decision.

Conclusion:
The tribunal upheld the Commissioner’s order, finding no infirmity in the adjudication. The appeals were dismissed, and the penalties and confiscations were deemed appropriate given the roles of the individuals in the attempted smuggling. The judgment emphasized the corroboration of statements with physical evidence and the legitimacy of using such statements in customs proceedings.