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TMI Blog2023 (5) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... DRI and found mis-declared and under-valued. In that circumstances, how the appellant was involved in abetment of the impugned consignment, which were already found mis-declared and under-valued. This said issue has come up before this Tribunal in the case of Smt.Sushma [ 2021 (7) TMI 578 - CESTAT NEW DELHI] , wherein the Tribunal has held There is no mention of any involvement of the appellant either in the form of instigation or conspiracy to aid the impugned fraudulent export. Though said statement got retracted vide his letter dated 26.08.2011 to Director General, DRI. But said retraction stands rebutted from letter No.50 D/25/2011 dated 02.09.2011 (RUD-II) and also from his own subsequent letter dated 11.11.2011 (RUD-12) where he informed Director General, DRI, about him to be the authorized person of all the companies in Table-I. All the documents collected statements recorded by the department are absolutely silent about any alleged role of the appellant. Further in the case of Shri Ram Another [ 1974 (11) TMI 100 - SUPREME COURT] , the Hon ble Apex Court has examined that in order to constitute abetment, the abettor must be shown to have intentionally aided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that M/s A.S.S.Tradcom is a partnership Company having partners, Shri Sailendra Singh and Shr Rajesh Roy, residents of Kolkata and Howrah respectively. It was seen that the Customs Broker for the Bills of Entry filed by the above said imports, is one M/s Modern Agency and two consignments were already cleared. Remaining four consignments were examined and found that the goods have been mis-declared and undervalued. It was found that these are branded goods, which amounting the case of suppression and smuggling. All the consignments were seized on the reasonable believe that the said consignments were imported with intention to evade payment of Customs duty misdeclaring those to a different materials of low value. No request for provisional release from the importer was made. It was further revealed that the office premises of the importer was found closed and unoccupied. Shri Sailendra Singh was not found at his residential address, which is occupied by him having 4/5 members. Residence of Shri Rajesh Roy was also searched and no incriminating things could be recovered. He was not present at that time. Statements of the Customs Borker of M/s Modern Agency was also recorded. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f relied upon document and sought time to file the reply to the show-cause notice, but no reasonable opportunities were granted to the appellant. Thereafter, it was concluded that the appellant is not interested to pursue his case and the matter was adjudicated and observed that the appellant has acted as per the request of Shri Sameer Sharma. Therefore, the appellant intended to abet hugely misdeclared and undeclared import and is liable for penal action under Section 112 (a) 112 (b) of the Customs Act, 1962. For the act of omission and commission and penalty of Rs.20.00 lakhs was imposed. 2.5 Against the said order, the appellant is before us. 3. The ld. ounsel appearing on behalf of the appellant, submits that as per the investigation, it is alleged that the appellant came to the DRI Office on 25th August 2007 along with one Shri Sameer Sharma to facilitate the clearance of the import consignment in the name of M/s A.S.S.Tradcom. It is alleged that Shri Sameer Sharma who also came along with the appellant, but no statement of Shri Sameer Sharma was recorded. It is the contention of the appellant that the appellant came to DRI Office mistakenly as he wanted to meet one Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was involved in illegal or illicit import of the impugned consignments. 5. Heard the parties and considered the submissions. 6. On consideration of the submissions made by both the sides and perusal of the records, we find that during the course of investigation, it is found that on 25.08.2017, the appellant visited the DRI Office along with one Shri Sameer Sharma, on whose persuasion, the appellant came to the DRI Office to facilitate the clearance of the impugned consignment, but it is very strange, that when Shri Sameer Sharma has also visited DRI Office along with the appellant, why the statement of Shri Sameer Sharma, who is alleged to be tout in the import of the impugned goods, was not recorded ? It is found from the record that it has been alleged that the appellant has abeted to mis-declare and under-value the impugned goods, but in fact, the impugned consignment were already intercepted by DRI and found mis-declared and under-valued. In that circumstances, how the appellant was involved in abetment of the impugned consignment, which were already found mis-declared and under-valued. This said issue has come up before this Tribunal in the case of Smt.Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to committing the crime/offence. The market inquiry was post the commission of crime of fraudulent export of handwoven carpets which were otherwise liable for confiscation to wrongly avail higher duty draw-back by Mr. Sajjan Kumar. Hence, no question arises of abeting him at a stage later than the commission of said fraudulent exports. There is no evidence produced by the 9 Customs Appeal No. 52193 of 2019 [SM] department which may prove that the appellant ever instigated or conspired or intentionally aided Shri Sajjan Kumar to fraudulently export the hand woven carpets to traders in different countries and to take as high as 12 Crores of drawback in DAPL and higher drawback in other companies as well. There is no evidence that appellant has been the beneficiary of these amounts or part thereof. From the documents and statements on records it is very much apparent that it was Sajjan Kumar who with the help of Mohammad Najib Sattar, Menon the trader of fabric Alip Kumar Das, Shamsher, Singh, his employees was over-invoicing the value of carpets meant for export. Sajjan Kumar admitted same vide his statements dated 24.08.2011, 25.08.2011. There is no mention of any involvement o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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