9911796707
TMI Blog2023 (8) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... t he followed the same modus operandi for clearing the above airway bills. Thus, it can be seen that Sri Naveen Kumar and Sri Kannan were fully involved and acted together in the illegal activity of importing the undeclared goods. The narration of facts itself bring out the mens rea and overt act of Sri Naveen Kumar, and Sri I.C. Kannan. The goods which have crossed the barrier of the country without declaration and without payment of duty are liable for confiscation under Section 111 (d) of the Customs Act, 1962. Thereby the act of the appellants attracts imposition of penalty under section 112 (a) of the Customs Act, 1962. However, it is found that penalty of Rs.10 lakhs imposed under Section 112 (a) of the Act is on the higher side and requires to be reduced. The penalty imposed under Section 112 (a) on each of the appellant is reduced to Rs.5,00,000/-. Further, in the present case, the whereabouts of the consignee were not traceable. On investigations, it was revealed that there is no such person in the given address. These are nothing but paper transactions. The imports were made only for the benefit of appellants and their allies. A person who causes to be made, signed or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific import documents towards import of the said goods (bill of entry) were filed in respect of the airway bills. On opening and examining the cartons it was fond to contain 10 nos. of Sony High Definition Digital Video Cameras without battery and accessories, 203 nos. of Titan branded watches of various models and 10.475 kgs. of 22 carat gold jewellery concealed in one Martine Roland brand audio receiver by removing its inside components. The total value of the impugned goods were arrived at Rs.3,32,51,885/-. Since it appeared that the impugned goods were smuggled into India without any declaration and payment of duty, the officers seized the same under mahazar dt. 18.01.2013. The seized goods were handed over at Customs Airport warehouse for safe custody. 3. On verification of the address of the consignee, Sri Gouri Nandanam, it revealed that no person is available by the such name in the said address. Shri Naveen Kumar Border clearance officer of M/s.UPS Jet Air Express Pvt. Ltd. was summoned and his statement was recorded under Section 108 of the Customs Act, 1962. He stated inter alia that he has a friend by name Shri Kannan (appellant in appeal no.C/41484/2016) whom h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is stated by Kannan that Sri Ganesh is the son-in-law of Sri Durai and he knew Sri Durai for the last 5 years. Sri Durai used to get him electronic goods at cheaper rates and Sri Durai also dealt with second hand cars. Sri Kannan stated that he met Sri Vijay, son of Sri Durai two years back in Singapore for purchase of computers and other electronic goods through one Sri Kabilan, Singapore and that Sri Kabilan is his childhood friend. During October 2012, Ganesh and Durai asked him whether he can do clearance of courier consignments imported by them from Singapore. Sri Ganesh asked him to arrange for customs clearance without detection of Customs. It is stated that Sri Ganesh informed that one Sri Mahadev of M/Jupiter Import Export Pte Ltd., Singapore would be doing the bookings in Singapore and that the consignments will be of 25-30 Kg. each and would be declared as booklets, manuals, wires etc. Sri Kannan told Ganesh that he had a friend in doing import Courier (Naveen Kumar) who could help him in clearing the consignments. It is explained by Kannan that after the consignments are booked from Singapore, Sri Ganesh and Durai would inform the relevant airway bills to Sri Kanna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the consignments. There is no knowledge about the fact that gold was being smuggled and therefore huge penalty imposed is not sustainable. It is argued by the Ld. Counsel that in the case of Vishnu Kumar Delhi Vs CC 2010 (260) ELT 365 (Del.) it has been held that to sustain charge of abetment the ingredients of Section 107 Indian Penal Code has to be established. In the present case, there is no intention on the part of Naveen Kumar to abet an offence and therefore the allegations do not stand proved by the department. Sri Naveen Kumar or Sri Kannan did not have any combined plan and therefore cannot be alleged to have abetted the incident. 7. With regard to the penalty imposed under Section 114AA of the Customs Act, 1962, it is submitted by the Ld. Counsel that said section is not attracted in the facts of the case. There is no mens rea established on the part of Naveen Kumar to create fraudulent documents. Further, the said section cannot be applied in the case of imports and is applicable only to exports. That Sri Naveen Kumar has not deliberately or intentionally made any false declaration in any document. There is no evidence that Sri Naveen Kumar fraudulently created doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and others. None of the consignees in whose name imports were made were traceable. The appellants have thus fabricated the documents by giving false address of consignees and also importing undeclared goods. Sri Kannan and Sri Naveen Kumar have been operating hand in hand to clear the goods for making illegal gain for themselves, the penalties imposed are legal and proper. Ld.A.R prayed that the appeals may be dismissed. 10. Heard both sides. 11. The statement recorded from Sri Naveen Kumar under Section 108 of the Customs Act, 1962 has revealed that Sri Kannan used to inform the airway bill details of the arriving consignment over phone or in person. Sri NaveenKumar was responsible for the customs clearance. Sri NaveenKumar used to download the import manifest of M/s.UPS authorized courier from the server and then would remove the particular airwaybills from the manifest. He would then take the altered manifest to the courier terminal for submission before the custodian. The particular packages would have been declared as documents which are excess arrived and would be cleared as documents without being scanned and detected by customs authorities. He would hand over the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office computer and prepare false import manifest and present the same before the customs authorities for clearance of the consignment. Further, in the present case, the whereabouts of the consignee were not traceable. On investigations, it was revealed that there is no such person in the given address. These are nothing but paper transactions. The imports were made only for the benefit of appellants and their allies. A person who causes to be made, signed or used any declaration or document is also liable under Section 114AA. Sri I.C. Kannan had caused Sri Naveen Kumar to make the false documents. It is Sri I.C. Kannan who had informed Sri Naveen Kumar the details of airway bills so as to manipulate the import manifest. So both appellants are guilty and liable for penalty liable under Section 114AA. On appreciation of facts, we find that penalty of Rs.25 lakhs under Section 114AA is on the higher side and requires to be reduced. The penalty imposed under this section is reduced to Rs.10,00,000/- (Rupees Ten lakhs only) on each of the appellants. 15. In the result, the impugned order is modified to the extent of reducing the penalties as ordered below : (i) Penalty imposed un ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
