2021 (8) TMI 1159 - AT - Customs

Conspiracy - Smuggling - prohibited goods or not - Chinese origin fire crackers - goods wrongly declared bicycle parts - principle of criminal jurisprudence - HELD THAT - Apparently and admittedly, present appellant is the importer of bicycle products. Admittedly the impugned consignment was not in the name of M/s. Rahul Traders the importing firm of the appellant, but was in the name of M/s. Kirat Sales Corporation. Though the show cause notice recites that the consignment was initially booked in the name of M/s. Rahul Traders but in the light of the statement of Mr. Manish Shrivastava, Dy. Manager of Orient Overseas Life, the shipping agency and in the light of the document as that of Bill of Lading, the said allegations is not sustainable and the confirmation based thereupon is nothing but a result of presumption. This being a clear cut case of absence of any evidence against Rahul Sehgal, it shall be appropriate to hold that the adjudicating authority below has erred fastening liability upon the present appellant by way of imposition of penalty. The question of meeting of mind of the present appellant with said Saurabh Aggarwal gets closed with the element of doubt. Conspiracy being a criminal offence principle of criminal jurisprudence gets readily attracted. The foremost principle being that the benefit of doubt has to be extended in favour of the accused. In the present case there is not merely the doubt but the lack of substantial evidence as against Rahul Sehgal that the findings of authorities below cannot sustain. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Smuggling of Chinese origin firecrackers, Alleged abatement in smuggling, Conspiracy to smuggle prohibited goods, Liability of individuals involved, Evidence and presumption in adjudication.

Analysis:
The case involved the interception of two containers at Inland Container Depot, New Delhi, containing Chinese origin firecrackers concealed behind declared cargo of bicycle parts. The Department alleged that two individuals, along with a custom broker, conspired to smuggle the prohibited goods under wrongly declared items. Show cause notices were issued, leading to an order-in-Original confirming the proposal for recovery. The appeal against this order was rejected, leading to the present appeal.

During the appeal hearing, the appellant's counsel argued that there was no concrete evidence of conspiracy involving the individuals accused. They highlighted that one of the accused had already been exonerated by the Tribunal in a similar case, emphasizing the lack of evidence and grounds of parity for setting aside the order. The appellant's lack of cooperation with the Department and failure to produce relevant documents were raised by the Departmental Representative to deny the benefit of doubt to the appellant.

Upon considering the arguments and examining the record, the Member observed that the investigation was initiated before the goods were cleared, and the only document available was the Bill of Lading mentioning the importer as M/s. Kirat Sales Corporation. The statement of the importer was relied upon, but no notice was served to him, and the evidence against him was deemed insufficient. The involvement of the present appellant was based solely on a statement by the custom broker, lacking substantial evidence to support the allegations.

The Member further noted discrepancies in the email communication related to the consignments, casting doubt on the innocence of M/s. Kirat Sales. The appellant, being an importer of bicycle products, was not directly linked to the consignment in question, which was in another company's name. The allegations of conspiracy with another individual were refuted, especially considering the lack of evidence against that individual. The principle of extending the benefit of doubt to the accused in criminal cases was emphasized, leading to the conclusion that the findings against the present appellant were unsustainable due to insufficient evidence.

In light of the above analysis, the order under challenge was set aside, and the appeal was allowed, highlighting the lack of substantial evidence and the benefit of doubt principle in favor of the accused.