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TMI Blog2001 (2) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... M.B. RAM, 100 pieces of MPO cooler with leads, all of foreign origin and empty card board cartons of mobile phones bearing marking as Nokia and Siemens. The above goods valued at Rs. 1,05,20,000/- were seized since Mahender Goyal had not produced any evidence of legal possession/import of the same. In his statement dated 1-9-1997 Goyal admitted that he started carrying mobile phones and computer parts from Kathmandu to Delhi for the last one month on the directions of Vijay Saxena and that Vijay Saxena gave him 3 pieces of baggage to carry to Delhi; that he was to deliver the same to one Tony who had a shop by the name M/s. Gift Palace in the Municipal Market, Karol Bagh. On 2-9-1997, he further stated that on reaching Customs arrival hall in Varanasi from Kathmandu, he gave the Customs clearance card (portion of the disembarkation card) to Arvind Kumar (the appellant herein) who stamped the same, that he paid Rs. 30,000/- to him for customs clearance and had not obtained any receipt for it. Enquiries from the office of the Air Customs, Varanasi showed that the appellant was on duty as Air Customs Officer on 1-9-1997 and had also attended to the passengers on flight IC-751 by whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d identification at a later stage, a false name may have been given by Arvind Kumar. Hence this appeal. Appeal No. C/11/2000 On 1-9-1997 Officers of the Customs Preventive intercepted Raj Kumar Singhal and Rakesh Kumar near VIP parking at IGI Airport, Domestic Terminal, New Delhi, while they were boarding Maruti Van along with their luggage. These persons had stated that they had arrived from Varanasi by Flight IC-808 that day, that their luggage contained mobile phones and accessories thereof; which had brought by Raj Kumar Singhal from Kathmandu to Varanasi by flight IC-751 on 1-9-1997 and that from Varanasi both of them were bringing the goods to Delhi. A search of the baggage resulted in recovery of 285 cellular phones of various brands of foreign origin collectively valued at over Rs. 80 lakhs. The goods were seized under the reasonable belief that they had been smuggled into India since no evidence was produced for their lawful acquisition/import. Rakesh Kumar stated that he was introduced to Raj Kumar Singhal by Vipin Kumar Bansal of Karol Bagh, that he (Rakesh Kumar) went to Kathmandu along with Raj Kumar Singhal in August, 1997 and returned via Varanasi bringing cel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch they knew and had reason to believe were liable to confiscation thus rendering themselves liable to penalty. Arvind Kumar and B.B. Singh were charged with having entered into an agreement permitting an act whereby goods seized on 1-9-1997 were allowed to be entered into India clandestinely and illegally in contravention of various prohibitions/restrictions on the import thereof, and abetted in an act which rendered the goods liable to confiscation under Section 111(d) thus making them liable to penalty under Section 112(b). The adjudicating authority ordered absolute confiscation of the seized goods; imposed penalties of different amounts on the 4 noticees and imposed a penalty of Rs. 2 lakhs on the appellant herein holding as under: Shri Arvind Kumar has stated that he was on leave on 17-8-1997 and was performing preventive duties on 24-8-1997/25-8-1997 and 1-9-1997 and as such could not clear any passenger and did not know Shri Raj Kumar Singhal, Rakesh Kumar and Vipin Kumar Bansal. He also stated that there was no evidence of payment of Rs. 30,000/-. As regards this plea that he could not clear any passenger on 24-8-1997/25-8-1997 and 1-9-1997 he being on preventive duty, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. However, the appellant s contention that he was not on duty in the Customs counter, and that he was on preventive duty as confirmed from the Duty Register, has not been rebutted and on the other hand, the Commissioner's finding is not that the appellant was on duty at the Customs Counter but that he abetted clearance of the mobile phones, etc., carried by Mahender Goyal by requesting the Customs Officer on clearance duty. The request of the appellant for examination of the Customs Clearance Card which would clearly show the name of the officer who allowed clearance without payment of duty, has not been acceded to. Mahender Goyal has also not identified the appellant as the person to whom he gave his Customs Clearance Card for stamping customs clearance and Goyal's statement on this aspect is belied by the fact that the Commissioner has not held the appellant to be the officer on customs clearance duty on 1-9-1997. The request for cross-examination of Mahender Goyal was made by the appellant but has not been allowed, and further, no reason has been given for not permitting Goyal to be cross-examined. No money has been recovered from the appellant, although Mahender Goyal had st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he did not know the Customs Officer who cleared him and his companion, Rakesh Kumar, along with the consignment of mobile phones when they returned from Kathmandu on 25-8-1997 because all the handling was done by Rakesh Kumar that he did not know the name of the officer posted at Benaras Airport who cleared him along with his consignment when he arrived from Kathmandu on 1-9-1997. He has also stated that Rakesh Kumar had told him that on arrival in Varanasi on 1-9-1997, he should go to the officer who had cleared their baggage (baggage of Raj Kumar Singhal and Rakesh Kumar) when they arrived from Kathmandu on 24-8-1997, and that he went to the same Customs Officer on 1-9-1997. Subsequently, in the same statement, Raj Kumar Singhal has stated that he was told by Rakesh Kumar that the person who helped them in customs clearance at Varanasi Airport is Arvind and that he has seen Arvind on all the 3 occasions during his entry in the Customs Hall on his return from Kathmandu to Delhi via Varanasi and that he had met Arvind on 1-9-1997 in the Customs Hall. That the appellant was on leave on 17-8-1997 is not disputed by the Department, and it is also not the finding of the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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