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TMI Blog2022 (3) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The possibility of said FIR as an after-thought to manipulate defence cannot be ruled out. Further, no outcome of the investigation in the said FIR have been brought on record, though original adjudicating authority has held Shri Sanjay Arora to be the victim of identity theft whereby his identity has been used to cause the fraudulent imports. But his association with Shri Deepak Rishi is very much established on record. From the testimony of all the noticees herein the transaction which appears in corroboration is that Shri Deepak Rishi was the mastermind for the impugned imports and every other noticee has acted at his instance - Sanjay Arora has not been the victim of identity theft. He rather allowed his papers to be used by Shri Deepak Rishi. Hence, he cannot walk out of being called as abater/ conspirator. Penalty upon him under section 112 of Customs Act, 1962 has therefore rightly been imposed - We are in agreement with the original adjudicating authority that after imposition of penalty on proprietor the simultaneous penalty on his firm for the same offence has been correctly dropped. The order under challenge to that extent stands upheld. The modus operandi fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shri Sanjay Arora while getting his statement recorded on 03.11.2011 has denied his involvement and stated that his firm has been misused as he is not an importer nor deals in the recovered goods. He was the trader of Batteries. However, he had applied for his IEC Code with the help of a person, namely, Deepak Kumar Rishi. The documents provided to him were stated to might have been used in the alleged act of importing misdeclared goods. 3. After extensive investigation of examining all concerned, the Department formed an opinion that Shri Deepak Kumar Rishi, (the main conspirator ) Shri Sanjay Arora Prorietor of M/s. Pico Trading Co. Shri Sanjeev Kumar Singh, Shri Hemant Sachdeva of M/s.Madhyam Logistics, Shri Sadanand Chowdhary (CHA), Shri Sagar Guleria, Shri Pankaj Guleria, Shri Nawal Kishore Singh Shri Bhupinder Singh Chadda (CHA) were apparently involved in manipulating the papers leading to mis-declaration and under valuation of the impugned goods which involved the evasion of customs duty. Accordingly, a Show Cause Notice bearing No.13147 of 24.04.2012 was served upon all the above named persons including the Container Corporation of India (CONCOR) proposing the confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24-10-2011 15:40:18 9811419852 9899389405 599 29.Whereas, to enquire about these calls, summons dated 01.10.2012 for 08.10.2012 was issued to Shri Sanjay Arora, however, neither Shri Sanjay appeared nor he filed any reply. Thus, from the above, it is clear that Shri Arora was very well in touch with Shri Deepak Rishi and these calls appear to have been made / received in connection with the import of said mis-declared consignment. It is also apparent that the Bill of Entry 5028721 was filed on 27.10.2011 and just before the filing of the said Bill of Entry they were in contact with each other, which is contradiction to his submission made by him in his statement dated 03.11.2011, vide which he had stated that he had received only a message from Shri Deepak Rishi wherein Shri Deepak Rishi had informed his new mobile No. as 8802536779 and after that he had no contact with him. It also appears that Shri Sanjay Arora in association with Shri Deepak Rishi and in co-ordination with other persons willfully and intentionally involved in smuggling activities and attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an envelope containing his IEC No. However even after the receipt of IEC, Noticee 2 has not made any imports. There are certain telephonic conversations between Noticee 2 and Noticee 3, which is evident from the details of call records, made in respect of the mobile numbers available with them. The details of such call as indicated in the show cause notice para 28 are as follows: Table Details of calls made by Noticee 2 to Noticee 3. The B/E was filed on 27.10.2011. Date Time From To Duration (seconds) 22-10-2011 13:04:12 9811419852 (Noticee-2) 9899389405 (Noticee-3) 166 22-10-2011 13:15:33 9899389405 (Noticee-3) 9811419852 (Noticee-2) 267 22-10-2011 13:36:01 9811419852 (Noticee-2) 9899389405 (Noticee-3) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion conducted, no one has even named them or identified them as importers of the mis-declared goods, even while admitting their respective roles in the importation of the said goods. Further they submitted that since noticee 2 is proprietor of Noticee 1, even if penalty is to be imposed on them, no separate penalty can be imposed on both of them in view of the following decisions: Saccha Saudha Pedhi Vs. Commissioner of Customs, Mumbai (2015 (328) ELT 609 (T) Commissioner of Customs, Mumbai Vs. Gyan Chand Jain [2015 (321) ELT 199 (T) Vinod Kumar Gupta Vs. Central Excise [2013 (287) ELT 54 (P H)] Vijaybhav Vs. Commissioner of Customs, Mumbai (2014 (313) ELT 506 (T)] Kashinath Das Vs. Commissioner of Central Excise, Mumbai (2014 (307) ELT 816 (T) Deepak Bansal Vs. Commissioner of Central Excise, Kanpur (2012 (328) ELT 609 (T) Commissioner of Central Excise, Lucknow Vs. Vinayak Drawings [2011 (268) ELT 410 (T) Bimal Kumar Mishra Vs. Commissioner of Customs, Mumbai [2011 (70) ELT 280 (T)] Munjani Brothers Vs. Commissioner of Customs, Mumbai (2011-(265) ELT 396 (T) From the facts as stated above it appears that Noticee 1 No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oprietorship concern. 6. The role of Shri Nawal Kishore Singh was alleged in the SCN as follows:- Whereas, from the perusal of Call details of Mobile No.9899389405 used by Shri Deepak Rishi, it appeared that following calls have been made/received on Mobile No.9811628751 used by Shri N.K Singh, Mobile No.9811025229 used by Shri Bhupinder Singh the Telephone Nos.011-41015892 011-41015892 pertaining to CHA firm M/s Continental Cargo Services, having it office at C-6-6161, Vasant Kunj, New Delhi-11 (owned by Shri Bhupinder Singh), by Shri Deepak Rishi during the relevant period. Sl. No. Telephone No./Mobile No. Telephone No./Mobile No. Date Time Duration (in second) 1. 01141015892 9899389405 29.09.2011 12:00 63 2. 01141015892 9899389405 29.09.2011 13:57:10 14 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been made by Shri N.K Singh and call from his mobile No. to Shri Deepak Rishi on 30.09.2011, he does not remember and the same might have been a returned call. However, Shri N.K Singh was also asked in his statement dated 20.09.2012 whether the said calls from the office Nos. have been made by him to Shri Deepak Rishi as stated by Shri Bhupinder Singh to which he replied that he does not remember having made any such calls to Shri Deepak Rishi on his mobile No. From the above, it appears that Shri N.K Singh and Shri Bhupinder Singh are also involved in this conspiracy and in attempt of smuggling of goods seized. 7. The role of Shri Nawal Kishore Singh found in the impugned order is as follows:- Shri Bhupinder Singh is in the field of Custom Clearance of goods since long and was himself having CHA Licence. Since his licence was suspended on account of certain enquiries being made, he was undertaking the work of custom clearance on the basis of the CHA Licence of his nephew Shri Rupinder Singh. He was having acquaintance with Shri Deepak Kumar Rishi (master- mind in the entire issue) since long and was constantly in touch with him through the filing of documents with C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 112 (a) and (q) of the Customs Act, 1962. It is also submitted that appellant had rather lodged an FIR for his Company alleging that documents pertaining to its firm have illegally been used in the impugned import. The FIR for commission of offence of forgery, cheating and fraud was got registered by appellant Sanjay Arora for himself and his Proprietorship M/s. Pico Trading Company. The order of imposition of penalty upon him is accordingly prayed to be set aside. 10. On behalf of Mr. Nawal Kishore Singh, the another appellant it is submitted that Shri Deepak Rishi was never known to him except that he was in touch with his employer Shri Bhupinder Singh and accordingly had collected certain documents for said Shri Deepak Rishi during the impugned period. Except this there is no evidence on record proving his involvement in the alleged illegal import. Order of imposition of penalty against him is accordingly prayed to be set aside and appeal is prayed to be allowed. 11. To rebut these submissions ld. DR has impressed upon the meticulous investigation as has been conducted in the present case. The meticulous effort of the original adjudicating authority to appreciate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the said FIR have been brought on record, though original adjudicating authority has held Shri Sanjay Arora to be the victim of identity theft whereby his identity has been used to cause the fraudulent imports. But his association with Shri Deepak Rishi is very much established on record. From the testimony of all the noticees herein the transaction which appears in corroboration is that Shri Deepak Rishi was the mastermind for the impugned imports and every other noticee has acted at his instance. Though many of them have pleaded no knowledge nor their consent but there is no positive evidence to corroborate the said defence. On the contrary the acknowledged participation of everybody involved herein is sufficient to prove their intent with all their knowledge and consent to participate in the impugned illegal imports. Hence, we are of the opinion that Sanjay Arora has not been the victim of identity theft. He rather allowed his papers to be used by Shri Deepak Rishi. Hence, he cannot walk out of being called as abater/ conspirator. Penalty upon him under section 112 of Customs Act, 1962 has therefore rightly been imposed. We are in agreement with the original adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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