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TMI Blog2009 (6) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... he last four parcels from Singapore. These parcels had come from M/s. VIST International PTE Ltd., 1, Pochor Canal Road, 04-64 SIM-LIM Square, Singapore and were addressed to M/s. Beam Technology, E-92, Amar Colony, Lajpat Nagar-IV, New Delhi (hereinafter referred to as M/s. B.T.). 1.2 As per the provisions of Section 82 of the Customs Act, 1962, in case of the goods imported by post, any label or declaration accompanying the goods which contains the description, quantity and value thereof, is deemed to be an entry for import for the purposes of the Customs Act, 1962. The customs declaration pasted on these four parcels did not contain any information about the description, value and quantity of the goods and on each parcel only a four digit number was mentioned. These parcels were opened in the presence of independent witnesses and were found to be containing computer parts. The number mentioned on the customs declaration pasted on each parcel turned out to be the invoice number which was found inside the parcel. However, the description of the goods and quantity, as mentioned in the invoices was different from the description, quantity and value of the goods actually found. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were required to be seen and selected for duty free delivery or delivery after customs examination, and that in respect of nine parcels, which had been marked by him for duty free delivery, there was no customs declaration and those parcels were similar to the four parcels seized by DRI on 12-10-02. Inquiry was made with Shri Vishnu Kumar, another Sorting Assistant on 21-1-03, wherein he stated that one Shri Kishori Lal posted as Postal Clerk at the Foreign Post Office (FPO) was his friend, that sometime in August, 2002 Shri Kishori Lal asked him to keep watch for parcels of certain parties including M/s. B.T. and M/s. Abhishek Electronic and inform him about the arrival, that he used to do the needful on account of his friendship with Shri Kishori Lal, that all the parcels about which Shri Kishori Lal had inquired was sent directly to parties for duty free delivery without being sent to FPO for customs examination, and that on 11-10-02 nine parcels of M/s. B.T. and two parcels of M/s. Abhishek Electronic had been cleared for duty free delivery by Shri Rajesh Kumar, Customs Inspector. Statement of Shri Kishori Lal, Postal Clerk posted at FPO was recorded on 21-1-03, wherein he st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement was recorded on 18-2-03, wherein he stated that he owns/controls, three firms M/s. B.T., M/s. Sadhika Peripherals and M/s. V.S. Infotech, that he carried out his business activities from his house at 107A/91, Bhandari House, Nehru Place, New Delhi and B-6, Dayanand Colony, Lajpat Nagar, New Delhi, that M/s. B.T. was a private limited company in which, in addition to himself, Shri Joginder Gulati who generally resided in Singapore and Shri Deepak Sethi are other Directors, that Shri Joginder Gulati was an active Director and Shri Deepak Sethi was inactive Director, that M/s. V.S. Infotech and M/s. Sadhika Peripherals were proprietary concerns solely owned by him, that Shri Joginder Gulati owned and controlled two companies namely VIST International PTE Ltd., 1, Pochor Canal Road, 04-64 SIM-LIM Square, Singapore and Jorgi International, Singapore situated at same address, that he along with Shri Joginder Gulati decided to import computer parts into India from Shri Joginder Gulati s companies at Singapore, that initially they imported some consignments at Air Cargo Complex, Delhi till July, 2002 and thereafter they started importing through speed post parcels, that his friends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued to M/s. B.T., Shri Sandeep Sehgal, Shri Joginder Gulati, Shri Kishori Lal, Shri Rajesh Kumar and Shri Vishnu Kumar for-(a) confiscation of the goods valued at Rs. 41,53,555/- seized at speed post centre, Bhai Vir Singh Marg, New Delhi on 12-10-02 and also for recovery of duty amounting to Rs. 10,62,231/- in respect of these goods, and (b) imposition of penalty of all the noticees under Section 112(a) and 112(b) of the Customs Act, 1962. 1.8 The Commissioner of Customs, Air Cargo Complex, Delhi vide the impugned order order-in-original No. KRB/ACE/08/05 dated 9-6-05 - (a) ordered confiscation of the seized goods under Section 111(d), (l) (m) of the Customs Act, 1962 with option to be redeemed on payment of redemption fine of Rs. 10,00,000/- and payment of duty of Rs. 10,62,231/-, (b) imposed penalty of Rs. 5,00,000/- on Shri Sandeep Sehgal, Proprietor of M/s. B.T. under Section 112(a) of Customs Act, 1962, (c) imposed penalty of Rs. 1,00,000/- on Shri Joginder Gulati, and (d) imposed penalty of Rs. 1,00,000/- each on Shri Rajesh Kumar, Customs Inspector and Shri Kishori Lal, Postal Clerk under Section 112(a) of Customs Act, 1962. 1.8.1 The Commissioner, however, dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated by the Department. (4) As regards the allegation that prior to 12-10-02, Seventy-four post parcels containing dutiable goods had been illicitly imported into India and had been illicitly cleared and delivered duty free to M/s. B.T. with the connivance and abetment of Shri Vishnu Kumar, Shri Rajesh Kumar and Shri Kishori Lal and Shri Sandeep Sehgal, no show cause notice has been issued up till now in this regard and, therefore, on this basis no penalty can be imposed on any noticees. (5) As regards, Shri Joginder Gulati it was pleaded that since he is a NRI, no penalty can be imposed on him and in this regard reliance was placed on Tribunal s judgment in the case of Ankit Gopal Agarwal v. CC, Cochin reported in 2009 (234) E.L.T. 646 (Tri. - Bang.) = 2008 (89) RLT 756 (CESTAT - Bang.). In any case, he was only a supplier and he had no role to play in alleged supplied by his company from Singapore. (6) No penalty is imposable on Shri Vishnu Kumar as he was not in any way involved in alleged illicit import and clearance of post parcels containing dutiable goods and for this reason only, no penalty was imposed on him by the Commissioner. 2.2 Shri Sumit Kumar, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parcel. Since none of these post parcels were accompanied by any such declaration, their import is contrary to the prohibitions on import imposed under Section 11 of Customs Act, 1962 and hence the same would be liable for confiscation under Section 111(d) of Customs Act, 1962, and M/s. B.T. Shri Sandeep Sehgal, Shri Kishori Lal and Shri Rajesh Kumar, would be liable for penalty under Section 112(a). (3) As regards the penalty on Shri Vishnu Kumar, reiterating the grounds of appeal in the Revenue s appeal, he pleaded that he was also a part of the conspiracy for illicit clearance of the dutiable goods without payment of duty and, therefore, he being an abettor is also liable for penalty under Section 112(a) and Commissioner s order dropping the penal proceeding against him is not correct. 3. We have carefully considered the submissions from both the sides and perused the records. The first point to be decided in this case is, as to whether the goods seized from the speed post centre at Bhai Vir Singh Marg, New Delhi on 12-10-02 are liable for confiscation under Section 111(d), (l) and (m) of Customs Act, 1962. The plea of Shri Sandeep Sehgal of M/s. B.T. and Shri Joginder Gula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 11 of the Customs Act, 1962 and hence the same have been rightly confiscated by the Commissioner under Section 111(d) of the Customs Act, 1962. 4. Next comes the question of penalty on M/s. B.T., Shri Sandeep Sehgal and Shri Joginder Gulati under Section 112(a) and 112(b) of Customs Act, 1962. Though Shri Sandeep Sehgal in his statement dated 18-2-03 had mentioned that M/s. B.T. is a private limited firm with himself, Shri Joginder Gulati and Shri Deepak Sethi as Directors, the Commissioner at page 28 of the order, relying upon letter dated 31-7-2000 issued by Joint Director General of Foreign Trade, New Delhi, Ministry of Commerce, allotting an import and export Code No. to M/s. B.T, has given a finding that since this letter mentions M/s. B.T. as proprietorship concern of Shri Sandeep Sehgal, there is no question of any other person being its Director. However, in any case, since, the above-mentioned four parcels intercepted by DRI on 12-10-02, had been imported by Shri Sandeep Sehgal, Proprietor of M/s. B.T. into India contrary to the prohibitions imposed under Section 11 of Customs Act, 1962 and thereby rendering there goods liable for confiscation under Section 111 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by post any label or declaration accompanying the goods, which contains the description, quantity and value thereof, shall be deemed to be an entry for their import and as per the Notification No. 78-Cus., dated 2-4-1938, as amended, issued under Section 11 of Customs Act, 1962, there is prohibition on import of goods through post parcels/LPs which are not accompanied by a declaration containing the details of their description, quantity and value. Since, the number of post parcels/LPs entering into India from foreign countries is very large and a large number of them contain duty free items or items within the duty free limit, it is not feasible to open and examine each packet/post parcel and for this purpose, before sending the letter packets/post parcels to FPO for examination by Customs, an elimination/sorting operation is conducted by a Customs Inspector, who after going through the declarations pasted on the each letter packet/post parcel the type of parcel and also based on his experience decides which parcels are to be delivered to the addressees without any customs examination and free of customs duty and which parcels are to be sent to the FPO for opening and examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , these statements have to be treated as admissible evidence. From these statements, it is seen that it is Shri Kishori Lal who is at the centre of this racket. Shri Kishori Lal on the request of some traders including Shri Sandeep Sehgal of M/s. B.T. for duty free clearance of dutiable goods imported through post parcels, had requested Shri Vishnu Kumar, a Postal Assistant at the speed post centre, for informing him about the arrival of the post parcels of certain parties including M/s. B.T. and Shri Vishnu Kumar complied with this request of Shri Kishori Lal. Shri Kishori Lal thereafter with the active assistance and the help of the Customs Inspector Shri Rajesh Kumar managed duty free clearance of the parcels of certain parties and those parcels were cleared for duty free delivery by Shri Rajesh Kumar at the sorting stage itself. As per the records of the Postal Department, prior to the seizure of four parcels by the DRI on 12-10-02, during the period from August, 2002 to 11-10-02, a total of 74 parcels of M/s. B.T. had been cleared in this manner duty free though according to Shri Sandeep Sehgal about 50% of these parcels contained dutiable goods computer parts, out of which ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aded that in spite of this, no penalty can be imposed as while in respect of the goods under seizure the same had been seized at a time prior to being sorted out and prior to being presented to Customs and in respect of the illicit clearances prior to 12-10-02, no Show Cause Notice has been issued. We do not accept this plea, as held above, the goods seized by the DRI on 12-10-02 having been imported into India in contravention of the prohibitions imposed under Section 11 of Customs Act, 1962, are liable for confiscation and in this illicit import both Shri Rajesh Kumar and Kishori Lal have acted as active abettors and but for the intervention of the DRI, these goods would also have been illicitly cleared without payment of duty. Therefore, the penalty on Shri Rajesh Kumar and Kishori Lal is upheld. 6. As regards penalty on Shri Vishnu Kumar, the Postal Assistant, the Commissioner has dropped the proceedings against him and it is the Department which has come in appeal for imposition of penalty on him. On going through the Commissioner s order, we find that the Commissioner has not given any reasons for dropping penalty penal proceedings against Shri Vishnu Kumar. Though the role ..... X X X X Extracts X X X X X X X X Extracts X X X X
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