9911796707
TMI Blog2019 (3) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... the container load, moved the container out of the port and taken it to their godown for possible removal replacement / swapping of goods and / or container. The acts and omissions on the part of Mohammed Rabeek and Rahamath Ali will attract penalty for abetting the said attempted smuggling under Section 112 of the Customs Act, 1962. However, the quantum of such penalty will have to be commensurate not only to the degree of proof that the investigation has been able to throw up against these two persons but also / to the degree of complicity and abetment of each of them. Undoubtedly, there is a needle of suspicion that had the earlier container TLXU 2021855 not been seized and Shri Mohammed Rabeek and Shri Rahamath Ali not been in judicial custody, they would have caused clearance of the second container CAXU 3151576 also, and facilitated Mr.Roselan on the smuggling gold and cigarettes etc. from Malaysia and handed over the same to persons as instructed by Roselan. But it remains only a needle of suspicion. As mentioned earlier, statements from Rabeek have been recorded after the seizure from container CAXU 3151576 which in any case have been retracted subsequently. The main linka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /41264/2018, C/41265/2018 & C/41267/2018 2.2 Based on specific intelligence that gold bars are being smuggled into India through Tuticorin port by concealing them in consignment of unaccompanied baggage imported in container No. TLXU 2021855 arriving from Malaysia, the officers of DRI kept vigil on the movement of the said container at PSA SICAL Terminal, Tuticorin Port. The intelligence also suggested that the container may be diverted to a private godown in Tuticorin and that it may be replaced by another container carrying cover goods. The container TLXU 2021855 arrived at Tuticorin Port by vessel Cape Nemo on 10.02.2016. As per the Bill of Lading No. TALTKL01932656 issued by M/s.Trans Asia Lines, the container had 65 packages shipped and consigned to one Shri Abdul Wahab Ashkar Ali (PP No.J6944766). The contents therein were declared by the shipper in the said Bill of Lading as 'Used Personal effects'. The officers intercepted the said container at PSA SICAL Terminal, Tuticorin Port itself on 10.02.2016, loaded in one lorry Registration No.TN69K8611, laden without any documents. S/Shri Binu Raj, Driver of the Lorry and Shri M. Mohammed Sadham were present in the lorry. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing actual Registration No.TN29B 6909, belonging to Shri Mohammed Rabeek was used to carry / transport smuggled gold bars concealed in the container and lorry bearing actual Registration No.TN69K 8611 owned by Shri Rahamath Ali was always kept ready for substituting the actual container and parked in the godown. (iv) That Shri Binu Raj, Driver had knowingly indulged in smuggling of gold bars and cigarettes and diversion of actual container to the godown for the purpose of unloading the contraband as instructed by Mohammed Rabeek. (v) That one Shri A. Selvaraj had managed all the accounts relating to clearance of unaccompanied baggage to the godown and despatch of goods, was aware of clearance of contraband and had abetted Mohammed Rabeek and Rahamath Ali in the diversion of container from PSA Terminal to the godown by way of accompanying Binu Raj. (vi) That Shri Mohammed Sadham, son of Shri Mohammed Rabeek, had abetted his father in the diversion of container from PSA SICAL Terminal to the godown by way of accompanying Shri Binu Raj, Driver. (vii) That Shri A.Ashkar Ali had lent his passport for pecuniary gain and knowingly enabled Mohammed Rabeek to smuggle FMG bars by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g smuggled into India by concealment in an import consignment of "stock lot" of Elastic Tape (Cut Pieces) in container CAXU 3151576 arriving from Malaysia, monitored the arrival of the container which was listed in line No.55 of the IGM No.2130862 dt. 14.02.2016 (Voyage No.442A) filed by M/s.Relay Shipping Agency Ltd. (OEL), Tuticorin for vessel OEL COLOMBO. The officers intercepted the container at PSA SICAL Terminal, Tuticorin Port itself on 15.12.2016. After taking proper permission from the competent authority, the container was taken to mobile scanner installed at Tuticorin port whereupon officers suspected that certain contraband material might have been concealed therein and hence officers escorted the container to Hari CFS under Customs escort for detailed examination. As per the above mentioned IGM and Bill of Lading TALTKL01933916 dt. 04.02.2016, the consignment was filed in the name of M/s.Bin Dawood Travels & Cargo Service for clearance of 132 packages of "stock lot" of Elastic Tapes (Cut Pieces). One Shri Rahamath Ali was found to be proprietor of the said concern. Detailed examination of the container CAXU 3151576 was conducted in the presence of two independent witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 75,000/- under various provisions of Customs Act,1962, however gave option of redeeming the same on payment of a fine of ₹ 25,000/-; (v) imposed penalty of ₹ 50,00,000/- on M/s.Bin Dawood Travels & Cargo, Chennai under Section 112 (a) ibid; (vi) imposed penalty of ₹ 25,00,000/- on Shri S. Mohammed Rabeek under Section 112 (a) ibid; (vii) imposed penalty of ₹ 25,00,000/- on Shri S. Rahamath Ali under Section 112 (a) ibid. (viii) No penalty was imposed on Mr.Roselan, resident of Malaysia under Customs Act on the grounds that the said person was a foreign national. 3.4 In appeal, the Commissioner (Appeals) vide Order Nos.106 to 108 (2018) dt.10.04.2018 upheld the order of original authority. Aggrieved, Bin Dawood Travels and Cargo, S. Rahamath Ali and S. Mohammed Rabeek have filed Appeals Nos.C/41819/2018, C/41820/2018 and C/41821/2018 respectively. 4.1 Appeal C/41432/2018 (Afrin Express Courier Service) 4.2 Pursuant to issue of SCNs dt. 05.08.2016 and 11.8.2016 in the aforesaid cases, DRI forwarded a letter dt. 27.07.2017 to the Commissioner of Customs, Chennai in respect of interception of containers TLXU 2021855 and CAXU 3151576 and results of deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e firm and was running the business, which has not been disputed by him or by anyone else implicated in the Show Cause Notice. (v) From 2012 to 2016, the appellant was running the operations smoothly without any blemish. (vi) The business of the firm is to bring house hold articles from labourers in Malaysia which was to be gifted to relations and friends of them in Tamilnadu. The consolidation of baggage or cargo was done at Malaysia by Roselan of Bin Dawood Cargo and Travels SDN BHD (which was later renamed as Rahbiah Bi Enterprise, in the name of one of the partners there) (vii) While small packages would come in the form of unaccompanied baggage from a person coming on Transfer of Residency Rules, larger baggages would come as cargo in a container. (viii) Exporter in Malaysia would collect goods from various labourers in Malaysia and consolidate it in a single container and send it to Tuticorin along with the list of consignees and their addresses. (ix) Rabeek used to clear the containers/unaccompanied baggage from CFS using a local CHA i.e. Mr. Selvaraj on payment of duty and fines as per Circular Number 35/2007 dated 28.09.2007 and take it to a rented godown located 24 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e will "voluntarily" give statement about alleged two such smugglings in the past unless the statement is recorded under duress and threat. There is no other evidence (not even Whats app messages, unlike on the disputed two shipments between Roselan and Rabeek). Even that statement has been retracted vide letter of the Appellant dated 28-3-2016 dated 38 of Additional paper book submitted during the course of hearing. (xviii) The Show Cause Notice and the order have not disputed the fact that the appellant acted only as a door to door delivery agent and abetted in the smuggling of gold by the Malaysian party Roselan for a consideration of ₹ 30,000/- per Kg (xix) In fact Roselan (Rahbiah Bi Enterprise) has been served Show Cause Notice DRI / CZU/TTN /VIII/48/02/INT-1/2016 dated 05.08.2016 for the first container and DRI / Customs strangely claimed in para 20 of the OIO 99/2017 that they could not serve second notice DRI / CZU/TTN /VIII/48/03/INT-1/2016 dated 11/8/2016 (just 6 days from the first notice), in the absence of contact details. In fact Roselan's Reply to the second as well as first SCN is on record and has been recorded in para 32 of OIO 96/2017 (page 23) relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rap with a small rented office at Egmore, Chennai. (ii) During that time, his brother Mohammed Rabeek was in Malaysia and after working in Malaysia for many years, his brother started door to door courier service in Malaysia (iii) Rabeek returned to India during 2012 after relinquishing partnership in the Malaysian entity by handing over the firm to Roselan and Rahbiah, the other two partners of the firm. (iv) Rabeek after return started door-to-door courier service in India and since he did not have any premises, he started his business using the appellant's office. Since, Rental agreement was required for getting registration for his business, he used the Rahamat Ali rental agreement and stared the business named M/s.Bin Dawood Tours and Cargo. (v) His brother Rabeek was in complete control of the business of door-to-door delivery and Rahamat Ali was used only to deliver the goods to Chennai and certain districts surrounding Chennai. However, his brother Rabeek was taking care of customs clearances of goods imported from the entity in Malaysia in Tuticorin, handling cargo, sorting and repacking wherever required for ultimate delivery. (vi) This fact has been admitted by Moha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known to him. (xvi) Under the above said facts and circumstances, the appellant is innocent and was implicated without any knowledge whatsoever and has not violated any of the provisions of Section 111 as relied in the order and therefore no Penalty should be levied. 5.4 Appeal No. C/41262/2018 - OIO No. 96/2017 dated 28.04.2017 - Shri Mohammad Sadham (Container No 1. TLXU 2021855) (i) Shri Sadham had no role whatsoever in connection with the alleged seizure of the container containing gold. He was implicated for the only reason that he was the son of Mohammed Rabeek and was present at the godown on the day of seizure by DRI officials. (ii) It is pertinent to note that statement was obtained from Shri Sadham which was pre typed and obtained on 26.04.2016 through coercion and threat. He has filed a letter with ADG, DRI on 03.05.2016 explaining the facts in detail. (iii) The Adjudicating Authority has referred to the letter dated 03.05.2016 in Page No. 103 of the order but has contradicted the same by contending that Sadham has not retracted the statement of 26.04.2016. (iv) Thus Sadham is innocent and falsely implicated in this case only because he was the son of Mohammed Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal for setting aside penalties imposed on him maybe allowed 5.7 Appeal No.C / 41821/2018 - OIO No. 99/2017 dated 28.04.2017 - Shri Mohammed Rabeek (Container No 2. CAXU 3151576) (i) In respect of the second container, the appellant was in judicial custody and realizing that he would not be in a position to handle that container, the exporter in Malaysia, Roselan had sent an email to liner to hold the container at Colombo and ultimate re-export to Malaysia. Copy of the email sent by the Malaysian entity to liner is at page 44 to 48 of the Paper Book. (ii) However later, it was found that, DRI contacted not only the liner but also the Tuticorin Customs Officials, Port Officials at Srilanka, Cargo Handlers, Srilankan Customs etc. and insisted that the liner should bring the container to Tuticorin instead of holding it in Colombo or sending it back to Malaysia. (iii) It was learnt from liner that, vide letter issued in File No. DRI/CZU/TTN/VIII/48 dated 06.02.2016 from DRI, this direction was given to the liner. The liner fearing for action by DRI, brought the container from Colombo to Tuticorin which was later seized by DRI. (iv) Thus, no attempt was made by the appellant to sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in contravention of the provisions of Section 33 or Section 34. Not Applicable in view of above. J Any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission Not Applicable in view of above. I Any dutiable or prohibited goods which are not included or not included or are in excess of those included in the entry made under this act or in the case of baggage in the declaration made under Section 77. Not Applicable in view of above. (vii) When none of the subsections mentioned in Section 111 is contravened, there is no question of invoking Section 112. In this case also, the Appellant or the others implicated in the impugned are not the owners of the gold; and therefore, the Appellant is not challenging the confiscation of gold (viii) The Tribunal may thus set aside the penalties imposed on Mohammed Rabeek in the interest of justice, particularly when gold has been confiscated and Appellants are not owners of gold or alternatively levy nominal penalties in the interest of justice. 5.8 Appeal No. C/41820/2018 - OIO No. 99/2017 dated 08.05.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from appellant's premises / office to implicate them in offence. All the above contentions were disregarded by the original authority and who even passed order dt. 8.5.2017 in disregard of the notice issued by Hon'ble High Court of Madras (Madurai Bench). vi) Without prejudice to above submissions, such a huge penalty is uncalled for when there is no dispute about the fact that appellant is only a courier agent and not an illegal importer of contraband goods. vii) Also, without prejudice to other submissions, penalty for same offence cannot be levied separately on both proprietorship firm and proprietor. Reliance is placed on Vinod Kumar Gupta Vs CCE - 2013 (287) ELT 54 (P&H) and CCE VS Gyanchand Jain - 2015 (321) ELT 199 (Bom.) 6. Appeal C/41432/2018 OIO No. 245/2018 dated 12.03.2018 - Afrin Express Courier Service (i) Afrin Express is an authorized courier registered under Courier Import and Export Regulations 1998 from 24.03.2009 with Chennai customs with no blemish. (ii) License granted to Afrin Express was cancelled by Commissioner of Customs Chennai vide Order in Original No. 245/2018 dated 12.03.2018, based on DRI letter dated 27.07.2017 enclosing two Show Cause Notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the smuggling activities in the name of Bin Dawood Travels and Cargo on rental basis by Rahamath Ali. During search of the godown by DRI officers, both Mohammed Rabeek and Rahamath Ali were found present. DRI officers found two lorries of identical numbers with laden container available for the purpose of swapping original container with bogus container for transportation to CFS. v) Mohammed Rabeek and Rahamath Ali can be said to be owners of the goods and have actually smuggled the goods. Considering the quantity of the gold and other contraband seized from the container and godown and the value thereof, the penalty of ₹ 75 lakhs each imposed under Section 112 ibid on Mohammed Rabeek and Rahamath Ali is very much commensurate to their offences. 7.3 In respect of Appeal C/41262/2018 filed by M. Mohammed Sadham i) He was the son of Mohammed Rabeek and was also actively involved in the clearance of the contraband to Tuticorin Port. In the instant case also he had gone with the driver Binu Raj for bringing the container to the godown while in transit from Port to CFS. Hence for these reasons, penalty of ₹ 15 lakhs imposed on him is very much commensurate to the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of gold. He also admitted to having received "Whatsapp" messages pertaining to cartons found with gold of foreign origin. He has also admitted that they are indulged in the smuggling of gold for monetary consideration of ₹ 30,000/- per kg each. (iv) Both Shri. Mohammed Rabeek and Shri. R. S. Rahamath Ali have been consistently indulging in smuggling activity even earlier, by way of diverting containers from PSA SICAL Terminal, Tuticorin Port to their private godown and after removal of contraband, the containers were sent to CFS for examination to hoodwink the Customs. (v) The claim of innocence about smuggling of contraband and gold by Shri. Mohammed Rabeek and Shri. Rahamath Ali cannot be accepted at face value since they have made several requests for provisional release of the seized goods. From the facts on record, their defence that they acted only as per the instructions of Shri. Roselan of Malaysia and were not aware of smuggling cannot be accepted. (vi) For these reasons, the penalties under Section 112(a) of the Customs Act, 1962 of ₹ 50,00,000/- on M/s. Bin Dawood Travels and Cargo and ₹ 25,00,000/- on both Shri. S. Rahamath Ali and Shri. S. Moha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Order is very much justified. 8. In response to synopsis and submissions filed by the Ld. Counsel for all the appellants, the department furnished comments thereon on 20.02.2019. These counter responses can be summarized as under : I. Mohammed Rabeek: Appeal No. C/41265/2018 for container: TLXU2021855: i) The fact of Shri.Rabeek knowing the consignment would come in concealment was corroborated with material evidence and it is illogical to claim that he was unaware of any such concealed items. ii) Now the appellant cannot claim innocence, as at least after the exporter admitting about the concealment of gold, Shri.Rabeek should have alerted the customs authorities about the concealment to prove his commitment to the law of the land. iii) Shri.Rabeek had admitted to handle the cargo for monetary benefit which revealed the conscious attempt on his part to illicitly transporting the cargo, on multiple occasions. iv) It was noticed that in the godown of M/s Bin Dawood Tours and Cargo, there was a 'One Time Seal' bearing no '021288' in dark blue colour, which was nothing but the seal number of the container TLXU 2021855, wherein 11.993 kgs of foreign marked gold bars we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Mohammed Rabeek wanted to start his independent business, he would have taken the godown on rent in his name. As Shri Mohammed Rabeek and Shri Rahamath Ali were business partners, the premises was rented in the name of Shri Rahamath Ali. ii) Shri Rahamath Ali and his brother Shri Mohammed Rabeek jointly orchestrated gold and cigarette smuggling in the guise of door to door delivery service. iii) Shri Rahamath Ali in his statements has admitted diverting of import containers to the go-down rented in the name of M/s Bin Dawood Cargo & Travels, owned by him, illicitly unloading of goods including cigarettes before customs clearance and replacing the original One Time Seal (OTS) with a bogus one. iv) The presence of Shri Rahamath Ali along with Shri Mohammed Rabeek on 10.02.2016, in the godown premises, expecting the container TLXU2021855 for removing the packages containing gold from the container, clearly indicates the role of them and their knowledge about the smuggling activity from the beginning. Hence it becomes clear that the appellants were very well cautious about their respective roles especially Shri.Rahamath Ali and can no more claim innocence to the smuggling activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowingly assisted Shri Rahamath Ali and Shri Mohammed Rabeek in the smuggling of gold and cigarettes, besides diverting of import container to the godown rented by Shri Rahamath Ali. Hence, the penalty imposed is justifiable. V Shri Rahamath Ali: Appeal No. C/41820/2018: Container-CAXU3151576: i) The allegation that DRI had brought the container from Colombo to Tuticorin is nothing but imagination of the appellant, not based on facts. As the request of the appellant for supply of documents, which only existed in the imagination of the appellant, was not relied upon in the case on hand, the Adjudicating Authority rightly denied the request. The denial of request would in no way take away the role played by the appellant in making arrangements for receipt of the container with 180 cartons (18,00,000 sticks) of foreign cigarette, 128 packages of household articles, including six packages with one-kilogram gold bar each, all in the name of import of 'stock lot of elastic tape' in the name of M/s Bin Dawood Travels & Cargo Services, owned by Shri Rahamath Ali. ii) The container said to contain 'stock lot of elastic tape' was imported in the name of M/s Bin Dawood Travels & Cargo Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ashkar Ali for a monetary benefit lent his passport for import of the container No. TLXU2021855, supposed to contain house hold articles. This has enabled Shri Rahamath Ali and Shri Mohammed Rabeek to smuggle gold in the said container. VIII Afrin Express Courier Service : Appeal C/41432/2018: i) Shri Rahamath Ali, proprietor of M/s Afrin Express has misused the Authorized Courier facility to illicitly transport and deliver goods cleared clandestinely, without the knowledge of the customs authorities, from the import containers. Shri Rahamath Ali and his brother Shri Mohammed Rabeek jointly orchestrated gold smuggling in the guise of door to door delivery service. Hence the claim of authorised courier service since 2009 without blemish doesn't hold good. ii) Shri Rahamath Ali is the proprietor of M/s Afrin Express, an Authorized courier. M/s Afrin Express, a proprietary concern has no independent legal existence, independent of its proprietor. Hence, no separate Show Cause Notice was required to be issued to M/s Afrin Express. iii) The illegal activities indulged in by the proprietor, will have a bearing on the concern owned by him. iv) While under Regulation 13 of Courier Im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r affiliate Shri Roselan of Rahbiah Bi Enterprise (Earlier Bin Dawood Cargo and Travels SDN BHD). Both the brothers have also maintained that the godown was used only for unloading . repacking, sorting etc. of such type of baggages for subsequent transport and delivery to the addressees. 10.7 In respect of seizure of 12 FMG bars and 2 cut pieces of gold bars, from washing powder bags from container TUXU 2021855 Mohammed Rabeek claims that he got to know about concealed gold only because Mr. Roselan specifically had requested him to handle certain packets carefully and deliver to persons ; that this aroused suspicion and only upon repeated enquiry, Roselan admitted concealment of gold and persuaded him to handle the clearance and delivery on additional consideration of ₹ 30,000/- per kg. 10.8 Shri Rahamath Ali has contended that after return of his brother Mohammed Rabeek from Malaysia in 2002, the latter had started his business namely M/s.Bin Dawood Tours & Cargo and only for getting registration, he had used rental address of the rental agreement of his own office. He has further averred that Rabeek was in control of the business of door to door delivery and that he was u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livery of the container he used to take the lorry with the laden container to the godown instead of CFS. Shri Binu Raj has also given the details of manipulation of the seals and removal of contraband like cigarettes and gold bars from such containers. The linkages and roles of various players in this drama have come to the fore in the investigation. There is also no dispute that 12 pieces of FMG along with 2 cut pieces of gold valued at ₹ 3,43,01,124/- were recovered from the container which was intercepted by the DRI officers. There also cannot be any dispute that 4,00,000 sticks of foreign origin cigarettes valued at ₹ 30 lakhs were seized in the godown. 11.3 On the flip side, we find some unexplained aspects in the manner of investigation carried out. Even as per the first part of the SCN dt. 05.08.2016, there was specific intelligence that the container TLXU 2021855 containing gold bars to be smuggled into India through Tuticorin Port would be diverted to a private godown and replaced by another container covering cover goods. If there was such specific and clear intelligence about the entire modus operandi, we are unable to fathom why the DRI officers in their wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for cross examination of co noticeees and other persons, the authority in para 27.01 of the order has denied the same on the ground that since the said noticees have admitted to their respective roles in the smuggling of gold etc. in the instant case as well as earlier occasions; that they are either blood related to each other or are employees of Binu Raj or Rahamath Ali, hence their retractions are not worth of credibility. He finds the retractions the retractions as "bald", though it has not been amplified as to what should have been the method, manner and content of such retractions so as to be considered "hirsute". For such petty reasons, the authority has refused cross examination. In our view, the denial of cross examination will only provide an Achilles heel to the defence to contend that had such cross examination been given, they would have proved their innocence and would have crossed the adjudication stage dry and safe. 11.4 Nonetheless, these protagonists cannot deny the seizure of the 12 FMG bars etc. from the container TLXU 2021855, very much evidently handled and cleared by them , though ostensibly in the name of one Shri Askhar Ali. While not granting of cross ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id. 11.6 However, as discussed herein above, the part played by each of these players is not surely the same and are in various degrees of complicity. This being so, the penalties that are imposable under Section 112 ibid will necessarily have to be commensurate with and in proportion to, the degree of abetment and complicity by each of them. 11.7 The main protagonists however are Mohammed Rabeek and Rahamath Ali. Penalty of ₹ 75 lakhs each has been imposed on them under Section 112 (a) of the Customs Act, 1962. In the first place, we find that the related SCN while proposing personal penalty on these persons had only indicated Section 112 ibid without mentioning the sub section (a). Be that as it may, Section 112 (a) is a penalty imposable on the person who in relation to any goods does omits or acts to do act which act or omission would render such goods liable to confiscation under Section 111 or abets doing or omission of such act. The SCN is a bit hazy as to whether Mohammed Rabeek and Rahamath Ali require to be penalized for smuggling the gold as owners thereof or whether they are only guilty of having abetted Roselan of Malaysia to facilitate the smuggling of gold se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeded to impose penalty under Section 112 ibid "commensurate with the seriousness of the offence committed by them, it could be equal to the value of gold bars so arrived successfully smuggled and sold by them as mentioned above". No evidence has been unearthed confirming the veracity of the earlier instances of smuggling, nor have any dates and the numbers of containers of such smuggling which were used to facilitate such smuggling been boned out. Or for that matter, the beneficiaries to whom the smuggled gold in earlier cases, and even the present seizure, had been handed over / would have been handed over, on the instructions of Roselan have not been identified. 11.9 In such a scenario, while no doubt Shri Mohammed Rabeek and Shri Rahamath Ali fully deserve imposition of penalty under Section 112 ibid, penalty of ₹ 75 lakhs each imposed on them by the adjudicating authority and upheld by the lower appellate authority is definitely too high commensurate to their individual roles. That Mohammed Rabeek had agreed to get the gold smuggled and handed over to unknown beneficiaries as instructed by Mr. Roselan of Malaysia for a consideration of ₹ 30,000/- per kg only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is also no allegation that he was in direct touch or correspondence with Roselan of Malaysia. He has retracted his statements. Cross examination of other persons who have named him in their statements were sought by him but denied by adjudicating authority. There is also no allegation that he was in any way involved at the planning stage or for that matter, that he was involved in enabling clearances of containers at Tuticorin Port, which was admittedly, done only by his brother Mohammed Rabeek. No incriminating documents or goods were recovered from him or his office. Even in the Revenue's written submissions dt. 20.02.2019 (in response to written submission of the appellant), it has been stated that Rahamath Ali and Rabeek were indulging in the said business with their roles clearly defined. The WhatsApp messages containing photographs of the cartons were gold bars etc. which had been concealed had not been sent to Rahamath Ali by Roselan but to his brother Mohammed Rabeek. In the written submissions filed by Revenue dt. 20.02.2019 it has been conceded that there is no allegation that Rahamath Ali had travelled to Malaysia, to arrange or organize the smuggling of gold and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement dt. 10.2.2016 and 11.2.2016 Selvaraj had stated that when was not aware of the ownership of the consignment TLXU 2021855; that he was only facilitating clearance of goods of unaccompanied baggage imports for the last four years. There is an "admission" that Mohammed Rabeek and Rahamath Ali have smuggled contraband items on three occasions earlier, however as discussed earlier, all these admissions have been retracted and are also left unproven by the investigation. There is also no evidence forthcoming on record that Selvaraj was in any way involved directly or indirectly with the planning, organizing and execution of the smuggling of gold and other contraband in the Container TLXU 2021855. There is no allegation whatsoever that Selvaraj was present either in or near the lorry TN69K8611 carrying container TLXU 8021855 which was intercepted by D.R.I. and or for that matter that he was present in the godown when the officers visited the place. There was no allegation that he was in any way actively involved in the planning of smuggling of gold or that he was in touch with Roselan for that purpose. Considering all these factors we hold that the penalty imposed of ₹ 10 lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and imposability of these penalties under Section 112 (a) of the Customs Act, 1962 and if so, the appropriateness of the quantum imposed in each case. 16.4 What cannot be disputed is that visual examination of the cargo imported through container CAXU 3151576 on 15.02.2016 resulted in recovery of inter alia 6 FMG bars in washing power packages. Pursuant to assaying, the gold bars were determined to be of 24 carot purity totally weighing 5997.400 gms valued at ₹ 1,73,20,491/-. Further, 18,00,000 sticks of "DJARUM" clove cigarettes valued at ₹ 1,35,00,000/- were also recovered and seized. 16.5 However, what we find disturbing is that even though as per paras 1 & 2 of SCN dt. 11.08.2016, it has been claimed that DRI had specific intelligence that gold is being smuggled into India through Tuticorin port in the container CAXU 3151576 arriving from Malaysia and that the container was intercepted after arrival at the port, however, there is no mention or clarity anywhere in the notice whether import documents had been filed by Bin Dawood Travels & Cargo or any other person after arrival of the container. If the DRI officers, as claimed in the SCN, were indeed constantly m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cigarettes on 16.2.2016, both Mohammed Rabeek and Rahamath Ali were not available or present, as they were then under judicial custody in connection with the earlier seizure. Statements from Mohammed Rabeek and Rahamath Ali were also recorded more than a month after the seizure, on 23/24.3.2016. However, both Rabeek and Rahamath have subsequently retracted those statements. 16.7 Rabeek and Rahamath have consistently contended that container CAXU 3151576 was not intended for India; that Rahbiah Bi Enterprise vide their letter dt. 14.6.2016 addressed to the Commissioner of Customs, Tuticorin had informed that they had wrongly shipped the container CAXU 3151576 to India instead of sending the same to Colombo in the OEL Colombo voyage; however D.R.I Tuticorin compelled the liner to bring the said container into India; that the container was forcibly brought into India from Colombo by D.R.I officers and examined on 15.2.2016 when they were in judicial custody in Madurai Jail. Rabeek has also contended that if they had opportunity to clear the said container they would have declared the gold in their Bill of Entry; that they were deprived of that opportunity; that they had not made any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only after the processes initiated by persons involved in an attempt to escape from consequence of law. At the same time, we find that in para-18 of the very same order, with regard to request for supply of documents relating to the correspondence made between D.R.I and other agencies, namely the Srilankan Customs, the custodian, liner, handling agent and Tuticorin Customs, the adjudicating authority held "I find that these documents are not required to be supplied to them as they were not relied upon in the instant case.....". It is pertinent to note that the adjudicating authority while denying the request for supply of the documents has not categorically denied existence of those very documents. 16.10 In the statements of Mohammed Rabeek recorded on 22.03.2016 and 23.03.2016 (later retracted) wherein inter alia, he gave details of clearance of goods as unaccompanied baggage sent by his friend Roselan of Malaysia, for the past 10 years and had been handing over the goods to the concerned persons and received ₹ 15/- per kg; that he would unload the customs cleared import goods in the godown rented out by his brother and would distribute the same ; that after there was decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olombo to Tuticorin Port at the behest of the D.R.I, nonetheless, it had been initially destined for Tuticorin Port only. Although the connection sought to be established between the second container CAXU 3151576 and the appellants is not absolutely watertight and absolute, nonetheless, enough linkage has been established between these two persons and the gold and cigarettes that have been attempted to be smuggled in the said container. There is a preponderance of probability that in this case also, that had the two appellants been footloose and free, they would very well have filed import documents for the container load, moved the container out of the port and taken it to their godown for possible removal replacement / swapping of goods and / or container. 17. Viewed in this light, we are of the considered opinion that the acts and omissions on the part of Mohammed Rabeek and Rahamath Ali will attract penalty for abetting the said attempted smuggling under Section 112 of the Customs Act, 1962. However, the quantum of such penalty will have to be commensurate not only to the degree of proof that the investigation has been able to throw up against these two persons but also / to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is imposed on S. Rahamath Ali, it cannot be imposed for same offences on Bin Dawood Travels & Cargo of which he is the proprietor. The case laws of Punjab & Haryana and Bombay High Courts relied upon by Ld.Consultant support this cardinal rule of jurisprudence. Hence we hold that the penalty cannot be imposed in this particular case on Bin Dawood Travels & Cargo under Section 112 ibid. 18.2 Coming to the quantum of penalty, we find that a penalty of ₹ 25,00,000/- has been imposed on Shri Mohammed Rabeek. While we have already held that Mohammed Rabeek has surely played an abettory role in the whole exercise, there is no allegation anywhere in the SCN or in the orders of the lower authorities that the gold actually belonged to Mohammed Rabeek or for that matter, to his brother Rahamath Ali. On the other hand, in the written submissions dt. 20.02.2019 submitted by Revenue (in response to appellant's written submissions) it has been conceded that there are no allegations in the SCNs that Mohammed Rabeek and Rahamath Ali are the owners of the smuggled gold. 18.3 Undoubtedly, there is a needle of suspicion that had the earlier container TLXU 2021855 not been seized and Shri Moha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Customs; that the person mentioned in the IGM had sent a letter that the container was not meant for Tuticorin Port; that the statements referred to in the SCN were all retracted and no evidential value can be attached to them. We find that the adjudicating authority has dismissed these contentions on the ground that they are only an afterthought. The adjudicating authority has also denied the requests by Rahamath Ali for cross examination of Mohammad Rabeek and other persons in the case. Adjudicating authority has also denied the request of Mohammed Rabeeek for cross examination of certain persons. These requests have been denied on the ground that relied upon documents based on which the charges have been made were supplied to Mohammed Rabeek and Rahamath Ali to "see, comment and criticize"; that there is nothing in law to say that right of cross examination of witnesses, noticees is an inalienable right. Further, in his appeal Rahamath Ali has also drawn attention to a letter of Mohammed Rabeek on 28.3.2016 wherein the letter he has stated that Rahamath Ali is not in any way responsible for smuggling of gold in any manner. DRI have recovered and relied upon the e-mails ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telligence forwarded a letter dt. 27.07.2017 enclosing copies of SCNs dt. 11.08.2016 and 05.08.2016, related to the proceedings which have resulted in the appeals (other appeals discussed hereinabove). During the course of investigation by DRI officers, it emerged that Shri S.Rahamath Ali who was allegedly implicated in the proceedings initiated by the said two SCNs was operating a courier service at Chennai Airport in the name of M/s.Afrin Express Courier Service as its proprietor. The SCN dt. 7.9.2017 was issued to Afrin Express Courier Service alleging that Shri S.Rahamath Ali, its proprietor has shown misconduct at Tuticorin Port in two instances for alleged role in illegal import of gold and cigarettes. The SCN referred to Regulation 14 (1) (c) of Courier Imports and Exports (Clearance) [CIEC] Regulations,1998. As per the said Regulation, The Commissioner of Customs may revoke the registration of an Authorised Courier and also ordered forfeiture of security if any "misconduct on the part of the Authorised Courier whether within the jurisdiction of the said Commissioner or anywhere else, which in the opinion of the Commissioner renders him unfit to transact any business in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed courier. vi) In support of the above argument, Para 13.2 of Mumbai Tribunal judgment as rendered in the case of Thakkar Shipping Vs. Collector of Customs, reported in 1994(69) ELT 90 was relied. The Tribunal categorically differentiated an abettor from a CHA, when in that case misconduct as a CHA was alleged and his license as a CHA was cancelled. In the words of the Tribunal "helping some persons and undertaking work as an agent are two distinct things. Helping a person in a authorized clearing of the goods may tantamount to abatement in the act of smuggling , may render that person liable as an abettor and by itself it cannot be said that he acted as a CHA for them". (vii) Even otherwise, it has been alleged in the related appeals that S.Rahamath Ali was innocent and is not involved in the attempted smuggling of gold and cigarettes detected at Tuticorin Port. Even admitted three statements of Rahamath Ali dt. 11.2.2016 were retracted by letter dt. 02.3.2016. 19.3. On the other hand, Ld. A.R supported the impugned order. He submits that appellant S.Rahamath Ali has been found implicated in two instances of attempted smuggling at Tuticorin Port of gold and cigarettes. As the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conduct" that is expected of an authorized courier. We find that all these obligations relate to the customs proceduralities and formalities under the Customs Act, 1962 in respect of courier export or courier import goods that have been caused by such authorized courier for their clearances. For example, as per Regulation 13, an authorized courier courier is expected to inter alia: (a) obtain an authorization from the consignees or the consignors of exports goods (b) advise his client to comply with provisions of Customs Act, 1962. (c) exercise due diligence to ascertain the correctness and completeness of any information which he submits to the proper officer (d) not withhold any information communicated to him by an officer of customs, relating to assessment and clearance of import goods or inspection, examination or clearance of export goods, from a client (e) not withhold any information relating to assessment and clearance of import goods or of export goods from the Assessing Officer (f) not attempt to influence the conduct of any officers of Customs by use of threat, false accusation, duress of offer of any special inducement or promise of advantage or by this bestowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... godown outside Tuticorin Port allegedly to facilitate their modus operandi. It has also been alleged that godown in which the gold and other contraband / smuggled goods were planned to be kept was rented out in the name of the said Bin Dawood Travels & Cargo. 21.6 Nonetheless, just because Rahamath Ali was implicated in the aforesaid smuggling at Tuticorin Port, by no stretch of imagination can Afrin Express Courier Service, an authorised courier in Chennai Airport, be also hung and quartered only because its proprietor is also the very same S.Rahamath Ali. A person may well be a proprietor of many number of firms or engaged in a slew of different activities. Only because the person or another of his firms has been implicated in an offence under the Customs Act, that infraction cannot, and should not have a domino effect on to the other firms which have nothing to do with the offence charged with the said violation. 21.7 The adjudicating authority appears to have adopted a line of thought that any misconduct, of any sort, by the proprietor of an authorized courier will be a misconduct for the purposes of Regulation 14 (1) (c) ibid. In our view, this is a legally unjustifiable an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
