2022 (5) TMI 260 - AT - Customs

Smuggling - prohibited goods - firecrackers as well as bicycle parts - statement of co-noticees - corroborated/legal evidences or not - seizure of goods - confiscation - penalty - HELD THAT - M/s. Kirat Sales has no relation with Orient Overseas Shipping Lines. In addition to the above statements, there have been the print outs of retrieved data from electronic devices, recovered seized from the premises of appellant, i.e. print outs reveals conversation about imported consignments from China about the firecrackers from one phone number to another and from the aforementioned e-mail ID which has been changed by Shri Jaskirat to be the ID for Kirat Sales. From all the above mentioned statements as have been relied upon by the Adjudicating Authority, it becomes clear that the present appellant had full knowledge of the impugned consignment. He has been clearing the consignment for M/s. Rahul Traders and for M/s. Kirat Sales. No illegality has been committed when witnesses have not been cross examined by the appellant. Otherwise also there has been no requests of the appellant for the cross examination of such witnesses based whereupon the Adjudicating Authority issued the order. Since appellant is found to have admitted his involvement, the admissions are best evidence which need no proof in terms of section 52 of Indian Evidence Act. The appellants admission that he was the Customs Broker for Orient Overseas Shipping Line and Rahul Traders and the admission about visiting Delhi in the month of August, the relevant time for the clearance of the impugned consignment rather are sufficient admission to accept the entire above testimony as evidence against him; that he has tried to level allegation on Shri Rahul Sehgal. Thus, appellant being CHA of M/s. Kirat Sales as well as of M/s. Rahul Traders had access to all their documents, consignments etc. No proceedings got initiated against M/s. Jaskirat. Proceedings against Rahul and Saurabh has been dropped. Purashottam and Ajay have clearly deposed about appellant only to have approached them at Delhi for getting cleared a mis-declared consignment. There are no infirmity in the findings arrived at by Commissioner (Appeals) - appeal dismissed.

Summary

Issues:
1. Confiscation of firecrackers and bicycle parts
2. Imposition of penalty on the appellant and others
3. Allegations of abetment in smuggling
4. Reliance on statements of witnesses
5. Violation of principles of natural justice
6. Admissibility of evidence based on admissions

Analysis:
1. The case involved the confiscation of Chinese origin firecrackers concealed behind declared bicycle parts in two containers imported by M/s. Kirat Sales. The consignment was seized under section 110 of the Customs Act, 1962. Investigations revealed involvement of the appellant, a Ludhiana-based Customs House Agent (CHA), in the clearance process.

2. The imposition of penalties on the appellant and two others was based on the findings of the Adjudicating Authority. The appellant challenged the penalties, arguing lack of tangible evidence against him and reliance on statements of witnesses without corroboration. The appellant's counsel cited a Chennai Tribunal decision emphasizing the need for concrete evidence for imposing penalties.

3. The appellant denied abetment in smuggling and claimed the misdeclaration was orchestrated by others. The Adjudicating Authority relied on statements of witnesses, including Shri Manish Srivastava, Shri Parshottam, and Shri Ajay Sagar, to establish the appellant's involvement. The appellant contended that cross-examination of witnesses was denied, violating principles of natural justice.

4. The Departmental Representative supported the findings of the Commissioner (Appeals) and cited a relevant case. The appellant's involvement in the clearance process for both M/s. Kirat Sales and M/s. Rahul Traders was established through witness statements and recovered electronic data. The appellant's admissions and witness depositions corroborated his role in the smuggling attempt.

5. The Tribunal upheld the Commissioner (Appeals) findings, emphasizing the appellant's access to relevant documents and his admissions. The Tribunal noted dropped proceedings against other individuals and dismissed the appeal, affirming the confiscation of goods and imposition of penalties on the appellant based on substantial evidence and admissions.

6. The judgment highlighted the appellant's role as a CHA for both firms involved, his knowledge of the impugned consignment, and his attempts to clear the misdeclared goods. The Tribunal found no infirmity in the Commissioner (Appeals) decision, upholding the order and dismissing the appeal. The judgment was pronounced on 04-05-2022 by the Appellate Tribunal CESTAT New Delhi.