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TMI Blog2017 (11) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... l the Appellants were making their contribution directly or indirectly, as briefly discussed above. The forged ID was used, false documents were prepared. Confiscation and penalties upheld - In fact, the Department has taken a lenient view by imposing lesser penalty/punishment. Unfortunately, the Tribunal has no power to enhance the penalty/punishment. So, we uphold the impugned order in toto for the reasons mentioned therein. Appeal dismissed - decided against appellant. - C/A.Nos.51151-51153, 51167, 51942-51944, 52503-52504, 52514-52515, 53516 of 2015, 53118-53125 of 2016 & C/Misc. Nos.50237, 50976 of 2016 in C/A.No.52504 of 2015 - C/A/56617-56636/2017-CU[DB] - Dated:- 19-9-2017 - Mr. (DR) Satish Chandra, President And Mr. V. Padmanabhan, Member (Techinical) Ms. Reena Rawat, Adv., Sh. V.R. Sethi, Adv., Sh. A.K. Prasad, Ms. Surabhi Sinha Priyanka Goel, Adv., Piyush Chaudhary, Adv., Ms. Shreya Dahiya, Adv. Sh. Govind Dixit DR ORDER Per: (Dr.) Satish Chandra All these appeals have been filed against the common Order-in-Original No.04/KAM/COMMR/2015 dated 16.01.2015 passed by the Commissioner of Customs (Appeals), New Delhi. 2. The br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passes. In other words, the containers were cleared without proper documents and without paying any duty, as mentioned in the impugned order. 3. On enquiry, it was found that the signatures and stamps of the concerned Officers were forged which were confirmed by the Central Forensic Science Laboratory (CFSL), Chandigarh. The concerned Officers stated that the documents were prepared without their knowledge by using the stamp DUPLICATE B/E DETACHED which appeared on the Manual Customs Gate Passes. On checking, it was found that the procedure for issuing the gate pass was that, when a CHA approached the authority with MANUAL CUSTOMS GATE PASS, the Officer checked the signatures and stamps of the Inspector and the Superintendent, TR6 Challan No. and Bill of Entry No. and date as mentioned in the gate pass. Thereafter, they entered the date of validity of the Delivery Order received from the Shipping Line in their system and generated two copies of CONCOR Gate Passes and handed them over to the concerned CHA. Then the CHA approached the Import Shed, where details given in the said CONCOR Gate Passes were fed in their system and after verifying the details, the said CONCOR Gate Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Star Aircon and M/s M.C. Overseas companies opened in the name of his relatives, Shri Manu and Shri Naresh Kumar respectively. He also admitted that he was an active partner in the said two firms and the other partner was Shri Rohit Sakhuja. He and Shri Rohit Sakhuja had around 40% financial stake in each of the business entities but without any written agreement. According to him, the last consignment imported by him consisting of O General brand air conditioners, was unloaded on 11.05.2013 at his godown in Nagloi, Delhi. Another consignment of Sanyo brand air conditioners was received on 16.05.2012 which was also unloaded in the same godown. Three containers were imported through Nhava Sheva, JNPT, Mumbai. All the three containers were imported in the name of M/s Star Aircon where he and Shri Rohit Sakhuja were active partners. The total number of air conditioners imported in the above mentioned containers was 455. The Department ordered release of 850 pairs of ACs subject to Bank Guarantee of ₹ 25 lacs and bond of ₹ 2.65 crores; but the same was not furnished. So, the goods were placed under seizure. In his statement, on 31.05.2012, Shri Ajit Singh Chadha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garettes] were recovered. 9. In the above scenario, the Department has made out the case for demanding customs duty and imposition of penalty. The adjudicating authority in the absence of sufficient evidence, dropped the charges against a few persons. Being aggrieved, the assessee-Appellants/Respondent have filed the present appeals. 10. With this background, we heard the learned counsels for the parties and perused the material available on record. I. CROSS APPEALS APPEAL OF ROHIT SAKHUJA (C/52504/2015 C/53119/2016); KAMAL VIRMANI (C/52514/2015); NARESH KUMAR SHARMA (C/52515/2015); ROHIT SAKHUJA 11. These are cross-appeals regarding Shri Rohit Sakhuja. 12. Shri A.K. Prasad, learned counsel for these assesseeAppellants, submits that eight containers were removed from ICD, Tughlakabad, without proper documents. The goods were recovered on 28.05.2012 from various godowns which includes cigarettes, air-conditioners, gas cylinders etc. Bills of lading were in foreign names, but nowhere the name of his client, Shri Rohit Sakhuja, appeared. Containers came from Singapore. On query from the Bench, he admits that TR-6 Challans showing the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by his client, but in the order-in-original it has been mentioned that duty was not paid. In any case, the assessee-Appellants was not supposed to pay the duty as he is not the importer. The duty can be recovered only under Section 125(2) of the Customs Act, 1962 at the time of release of the cigarettes, but cigarettes were sold without any proper notice. 13. About the non-availability of the stickers on the ACs, he submits that it can be presumed that assessee-Appellant have removed them to charge higher MRP from buyers, but it cannot be concluded that the ACs were illegally imported. Some goods of B‟ Category were not the imported goods. The Department has failed to prove that these were imported goods. The Department‟s investigation, in fact, was limited to goods listed in A‟ Category. Penalty cannot be imposed on Shri Rohit Sakhuja under Section 112, 114A and 114AA of the Customs Act, 1962 simultaneously. Since the duty on cigarettes had not been confirmed, the penalty cannot be imposed jointly on both Shri Ajit Singh Chadha and Shri Rohit Sakhuja. His client, Shri Rohit Sakhuja is not the importer, so duty cannot be demanded from him under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Star Aircon, there cannot be any offence against him. He was merely an employee of Shri Rohit Sakhuja and had acted under the guidance of his master. The Department has mistaken him for another Naresh Sharma, referred to in the statement dated 14.06.2012 these two were two different persons. The statement of Shri Naresh Kumar Sharma was recorded on 21.06.2012 and 10.09.2012 and he was never confronted with the statement of Umesh @ Rinku. 18. Finally, the learned counsel relied on the ratio laid down in the following cases : (i) Weston Components Ltd. Vs CC, New Delhi, 2000 (115) ELT 278 (SC); (ii) CC, Amritsar Vs Raja Impex Pvt. Ltd., 2008 (229) ELT 185 (P H); (iii) CC (Import), Mumbai Vs Finesse Creation Inc., 2009 (248) ELT 122 (Bom.); (iv) Commissioner Vs Finesse Creation Inc., 2010 (225) ELT A120 (SC); (v) Chinku Exports Vs CC, Calcutta, 1999 (112) ELT 400 (T); (vi) Commissioner Vs Chinku Exports, 2005 (284) ELT A36 (SC); (vii) Shiv Kripa Ispat Pvt. Ltd. Vs CCE C, Nasik, 2009 (235) ELT 623 (Tri.-LB); (viii) Bhagyanagar Metals Ltd. Vs CCE, Hyderabad, 2016 (333) ELT 395 (Tri.-LB); (ix) Dejero Logix Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 30 lacs is on the higher side and incommensurate with the value of the goods. The cylinder of R-22 gas was for a meagre amount. 20. Finally, she made a request that the penalty may kindly be dropped or reduced. AJAY KAUSHAL (C/51167/2015) 21. The learned counsel, Shri V.R. Sethi, submits that the role of Shri Ajay Kaushal has been discussed in para 103-105 of the impugned order. He is a petty shopkeeper. From his shop, 12 ACs were recovered without documents. He has purchased the said ACs from Shri Kamal Virmani of M/s Gaurav Enterprises, as mentioned in para 46 of the show cause notice. Lastly, he submits that imposition of penalty of ₹ 30 lacs is not desirable in the instant case. On legal aspects, he adopts the arguments of the other counsels. APPEAL OF SANDEEP KUMAR (C/51942/2015); PRADEEP KUMAR (C/51943/2015); AND BHARAT VIDHURI (C/51944/2015) 22. None has represented the assessee-Appellants, Sandeep Kumar, Pradeep Kumar and Bharat Vidhuri in spite of notice served upon them. A penalty of ₹ 30 lacs each on Sandeep Kumar and Pradeep Kumar; and ₹ 20 lacs on Shri Bharat Vidhuri was imposed. Their role has been discussed in the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.08.2012 wherein he has stated that Shri Rohit Sakhuja did not come to Saitel shop from 21.05.2012 to around 07.08.2012. During that period, he claimed that he never met with Shri Rahut Sakhuja. Nothing incriminating was found from his possession. From the statement of Shri Rohit Sakhuja s brother, Shri Punit Sakhuja, and their employee, Shri Naresh Kumar Sharma and Jagjit Singh @ Bunty clearly proved that Shri Rohit Sakhuja was absconding for about two months after the illegal removal of the containers and detection of fraud by the DRI. MANU CHOPRA (C/53123/2016) 25. The learned counsel Shri A.K. Prasad submits that, similarly Shri Manu Chopra was examined by the Department. He is the owner of M/s MC. Overseas. No reply was filed by him against the proposed action. A search was also conducted at his premises and on 21.06.2012 his statement was recorded. In his statement, he submitted that he worked as Relationship Manager in Vodafone for one year and quit his job. Thereafter, he joined Shri Rohit Sakhuja, son of his mother s elder sister, who offered him the work of mobile repairing in his shop. In the shop, he was selling mobile phones and imported LCDs (Sony) and A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Ms. Shreya Dahiya, submitted that M/s K Line Singapore Pte. Ltd., had not done any act or omitted to do any act in contravention of the statutory duty. While justifying the impugned order, she submitted that there is no allegation that the assessee-Respondents have not furnished statutory information to the Singapore Customs and there is no allegation of any fraudulent conduct or any action taken by the Singapore Customs. 29. None is present for Shri S.K. Singh, the then Superintendent (SIIB). From the record, we find that the Commissioner has dropped the penalty imposed on him by giving benefit of doubt for the reasons mentioned therein. 30. We have heard all the parties and gone through the material available on record. 31. Regarding the sale of cigarettes, it may be mentioned that cigarette is a perishable items which was rightly sold by the Department as there was no claimant for the same. It is claimed that the duty was paid on cigarettes, but in the impugned order it is mentioned that duty was never paid. Further, the Appellant claimed that he was not the importer. 32. The liberty was granted to the Appellants to submit the bank guarantee for releasing the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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