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TMI Blog2020 (9) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... on or abetment on his part with the importer of the consignment under dispute Shri Goyal and/or Shri Brijesh Mishra. Penalty has been imposed mechanically without application of mind - Accordingly, the penalty imposed under Section 112 (a) of the Customs Act is set aside - appeal allowed - decided in favor of appellant. - Custom Appeal No. 50468 of 2019 - FINAL ORDER NO. 50763/2020 - Dated:- 10-9-2020 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) MR. C. L. MAHAR, MEMBER (TECHNICAL) Ms. Reena Rawat, Advocate for the appellant Shri H. C. Saini, Authorised Representative for the respondent ORDER The present appeal has been filed by the appellant Rajesh Gaba who is an employee, H Card holder working with Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.10.2007. However, on inspection, it was found to contain 65 air conditioners, 940 cylinders of Refrigerant 22 gas (prohibited goods) and 315 Sony Play Stations. After completion of investigation and enquiry, the Department issued show cause notice dated 28.03.2008 on the allegation that this appellant and one Mohd. Rafi acted in collusion with the kingpin of the smuggling racket - Shri B. K. Goyal, and thus have by their act of omission and commission facilitated the attempt to smuggle. 5. Statement of the appellant was recorded on 08.10.2007 under Section 108 of the Customs Act, 1962. It appeared that he was the person responsible for completing the formalities for clearance of the seized goods belonging to M/s Brij Enterprises. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y him to Mohd. Rafi. He had also given to Mohd. Rafi one blank letter head pre-signed by M/s Brij Enterprises. He further stated that the documents were given to him by Shri Brijesh Shah, prop. of M/s Birj Enterprises and he was charging ₹ 8,000/- to ₹ 10,000/- per container from which he use to pay ₹ 7,000/- to the CHA company. In his further statement, Shri Naresh Dutta stated that the actual importer of the consignment under dispute was Shri B. K. Goyal resident of Rohini, New Delhi and gave his address and mobile No. as well as landline number. Shri B. K. Goyal has given him the custom clearance work of the import consignment and thereafter he had entrusted the CHA - M/s Commercial Clearing Agencies Pvt. Limited. He ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e knew Shri Naresh Dutta though his known person. Further, he met Shri Rajesh Gaba through Shri Naresh Dutta. Further, stated that the prop. of the firm is his brother-in-law Shri Vivek Agrawal who resides with him, and was engaged in the business of import of ball bearing under the name and style of M/s Pashupati Trading House. Shri B. K. Goyal admitted that he has handing over clearance work either to the appellant or to Shri Naresh Dutta. 10. Further, statement of Shri Rajesh Gaba was recorded on 31.10.2007 wherein he stated that he was receiving the documents and depositing the cash in bank and to shift the containers. He was well versed with the work relating to custom clearance. Besides him, Shri Rafi and Shri Amit Zandu holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignment in question was held to be mis-declared as regards the description and value and also found containing prohibited / restricted goods. 13. Learned Counsel for the appellant further urges that no case of collusion or aiding and abetting is made out against the appellant employee of the CHA company. At best, the appellant has been working as an employee and no case is made out against him, for making any personal gain over and above his salary. Further, the non joining of the investigation by the Director of the CHA company speaks that the CHA company is responsible and not this appellant. Accordingly, he stated that for violation of the CHALR, 2004, the appellant by no stretch of imagination is responsible, nor have done ..... X X X X Extracts X X X X X X X X Extracts X X X X
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