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TMI Blog2023 (12) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... raud the competent authority. All the concerned i.e. employees, transporters, the labourers/contractors, CHA the dummy proprietors of firms Shri Rohit Sakhuja and Shri Ajit Singh Chadha have acknowledged that they knowingly indulged in impugned fraudulent act of removing illegally imported goods from customs area. Their statements have already been appreciated above - there are nothing which may falsify testimony of any of these witnesses. There are no infirmity in the findings where all these people are held responsible for abetting and facilitating impugned fraud committed for clandestine removal of the goods and improper importation of such goods also. Shri Kamal Virmani also has acknowledged about knowingly storing, distributing and selling illegally imported air conditioners and prohibited R-22 gas cylinders. Shri Satish Kumar also acknowledged about knowingly purchasing R-22 gas cylinders that those restricted goods have been illegally imported. Similarly Mr.Dilip Singh Jain and Vijay Kumar Sharma were found in possession of illegally imported goods with full knowledge in that respect. Penalty upon Shri R.K.Mahapatra, Junior Executive (Commercial Operations) CONCOR,ICD, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... COR,ICD,TKD, New Delhi was recorded. However, he could not re-collect the names as were mentioned in the Bill of Entry which were shown by the CHA concerned. The statements of concerned transporter, shippinglines and other related persons were also recorded by DRI officers including the statement of the appellant herein, alongwith the statements of Shri Chhutan, driver of truck/trailer No.HR55A-9309 of M/s.Bharat Transport Co. and Shri Laxmi Das, driver of truck/trailer of truck No.HR38K-3455 of M/s.K.T. Transport Co., New Delhi. Pursuant to the said statements, the investigating team reached one godown bearing No.76,50 feet Road, Meera Enclave, Village Ranhola, P.O.Nangloi, New Delhi was found locked on 30.5.2012. Since, the godown was found locked, it was sealed under panchnama. Subsequently, the godown was searched under panchanam dated 31.5.2012 in the presence of panchas, Head Police Constable, PS Ranhola and drivers namely, Shri Laxmi Das, Shri Ghulam Mohiuddin and Shri Chhutan and following items were seized under the provisions of Customs Act, 1962: Sl No Item Description Quantity 1 Sany ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and later shifted to CWC godown, Saibahad. 2. 50 pcs of imported R-22 gas cylinders of 13.6 Kgs each, detained at godown premises of Shri Satish Kumar Chadha, Delhi under panchnama dt.12.06.2012. 3. 16 pcs of imported R-22 gas cylinders of 13.6 Kgs each, detained /seized at godown premises of Suman Enterprises, C-3/5 and 4/5, Ground Floor, Lal Quarters, Krishna Nagar, Delhi-51 under panchnama dt.10.06.2012. 4. 62,40,000 cigarettes of Indonesian origin (without statutory health warning) detained/seized at godown A-29, Ground Floor, Krishan Vihar, Delhi-86. 5. 1055 units of air conditioners of different brands seized at 7, Meera Enclaive, Nangloi Godown. B. Imported goods found to be without labeling requirements/MRP stickers. Apparently illegally imported/smuggled and apparently some of the fraudulently removed goods in the aforesaid eight containers 1. The following goods detained/seized at godown at A-59, Adhyapak Nagar, Nangloi: (a) 323 units of O General brand window air conditioners (b) 745 outdoor units of O general brand air conditioners of different models, (c) 718 indoor units of O g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be confiscated. The said amount of duty was proposed to be recovered: Penal action in terms of sections 112, 114A and 114AA of Customs Act,1962 for master minding the entire operations of fraudulent removal of goods on the strength of forged documents, evasion of duty, illegal import of restricted goods without valid import licence , The total duty amounting to Rs.61,48,024/- alongwith interest, in respect of second category of goods in above table has also to be recovered. The said proposals have been confirmed vide order under challenge. Aggrieved with the said order, the appellants are before this Tribunal. 6. We have heard Shri Shri L.B.Yadav Ms.Gunjan Tanwar, Sh.Ashish Batra, Advocates on behalf of the the Appellants and Shri Manish Kumar Chawda, Sh.Rajesh Singh, Sh.Girijesh Kumar, Sh.Munshi Ram Dhania, Authorized Representatives for the Department. 7. Ld.Counsel for Bharat Vidhuri, appellant has mentioned that he is held liable for penalty under section 112 114AA of the Customs Act, 1962 merely on the basis of some un-corroborated statement made by one Shri Sushil Kumar, a daily wager who allegedly stated that he has handed over some gate pass book having n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent to connect the Appellant with the alleged clandestine removal of goods from ICD, TKD by procuring illegal and forged gate pass is based upon the Statement given by one daily wager, Sushil Kumar as was under Section 108 of the Customs Act, 1962. He on face of it appears to be a planted witness by DRI to make a wrong case against the Appellant. 12. None of the observations reflects that the answering appellants have committed forgery due to which the alleged consignment have been purportedly to be clandestinely and illegally removed from the jurisdiction of the ICD TKD resulting in revenue loss to the Department. 13. It is submitted on behalf of Shri Pradeep Kumar that the allegation leveled against the Appellant for helping his brother in clearance of the goods by abetment in forgery of manual Customs Gate passes and by being hand in glove with the main accused, Shri Rohit Sakhuja and Ajit Singh Chadha are absolutely wrong and contrary to the facts and evidence on record. Thus Pradeep Kumar is wrongly held liable for any penal action under section 112 and 114AA of the Customs Act, 1962. 14. It is mentioned on behalf of Shri Kamal Virmani that the investigation agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection, Shri Vijay Kumar Sharma in his statement dated 11.07.2012 has stated that he had purchased the goods from one Shri Rohit Sakhuja (a person who is main Noticee in the instant matter). Moreover a number of statements of number of persons were recorded but none of them has stated that these Appellants had any knowledge of the alleged illicit act or that they were complicit with that. 17. Ld. Counsels relied upon the decision in the matter of Commissioner of Customs, Amritsar vs. Kamal Kapoor-2007 (216) ELT 21 (P H),where Hon ble High Court of Punjab and Haryana has held that penal action is not permissible under section 112 in absence of mens rea. Purchaser of imported goods, having no knowledge of any violation, could not be subjected to penalty. 18. With respect to penalty as has been imposed on these appellants under section 114AA of the Act, Ld. Counsel has relied upon 27th Committee on Finance (2005-06) a report of the standing committee which explains the purpose for which section 114AA has been inserted in the Customs Act. It is mentioned that the purpose is to punish only those people who avail export benefits without exporting anything. It is impressed upon that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat Transport owned by Shri Bharat Vidhuri. The same were offloaded at godown of Shri Ajit Singh Chadha in the presence of Shri Ajit Singh Chadha and Shri Sanjay Kumar. The goods were destuffed with the help of labour supplied by the labour contractor, Shri Vinod Kumar. Recovery of broken seals and sticker of one of the said eight containers also confirms the alleged act. The alleged acts have been admitted in corroboration to each other by different persons in their statements under section 108 of the Customs Act, 1962. 23. When the whole conspiracy was unearthed by the DRI, then Shri Ajit Singh Chadha and Shri Rohit Sakhuja tried to manipulate the witnesses. They made false statement under section 108 of the Customs Act, 1962. Their names figured out as the main persons from the entire sequence of events starting from the booking, purchase, import and clandestine removal of goods to the subsequent sale in India. These containers were initially imported in the name of the firms namely M/s. M.C. Overseas and M/s.Star Aircon. Shri Ajit Singh Chadha was identified by all the drivers and by Shri Sanjay Kumar as the person who was present at the time of destuffing of the containers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar was present at the said transport company and he himself got the biliti (bill) prepared for the same. DRI recovered 316 R-22 gas cylinders from the godown of Shri Dilip Singh Jain. As per version the same were purchased in cash from Shri Vijay Sharma without any legal document. He had bought 160 cylinders of R-22 gas from Vijay Sharma. Import of R-22 is restricted as the R-22 is also an Ozone depleting gas. Since license for the same is not available, it becomes abundantly clear that the said gas had been illegally imported. 26. The decision of Hon ble Madras High Court in the matter of M/s.ALM Enterprises vs. Commissioner of Customs (Imports) is also relied upon, wherein it was held that 39. In the instant case, it is recorded in para 49 of the Order in Original that all cosmetic products including air fresheners and other toiletries which are imported for sale in India need to be registered with the licensing authority as defined under Rule 21 of Drugs and Cosmetics Rules 1945. In the instant case, the goods are found imported without obtaining the registration certificate from the Central Drug Standard Control Organization and therefore, it is found that the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court s decision in the matter of M/s.Munjal Showa Ltd. vs. Commissisoner-2022 (382) ELT 145 (SC) is relied upon wherein it was held that 9. In that views of the matter and on the principle that fraud vitiates everything and such forged/fake DEPB licences/scrips are void ab initio, it cannot be said that the Department acted illegally in invoking the extended period of limitation. In the facts and circumstances, the Department was absolutely justified in invoking the extended period of limitation. With these submissions, all the appeals prayed to be dismissed. 30. Having heard rival contentions of the appellants, and after perusing the entire record of the present and the connected appeals, we observe and hold as follows:- 31. That the present matter is the second round of litigation. Common Order-in-Original No04/KAM/COMMR/2015 dated 16.1.2015 was also earlier adjudicated fide Final Order No.55617-56636 of 2017-CU (DB) dated 19.9.2017 However, the said order has been set aside by Hon ble Delhi High Court vide its order dated 23.07.2018 holding that There is no gainsaying that in an appeal the person aggrieved has right to address the facts in law. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) Penalties on all appellants, who had been held involved in the alleged clandestine removal of the goods from the Customs area on the basis of forged documents and forged illegal import of prohibited goods had been imported under sections 112 and 114AA of the Customs Act, 1962. 33. From the facts of the case, we observe that the department got initially a specific intelligence that container No.KKFU7222266 was contained mis-declared goods. The said container found to had been moved from ICD, TKD without any Bill of Entry by using Customs manual gate pass. While investigating about the said illegal removal of the said container from the Customs area, it was found that the seven other containers had also been cleared in the same manner, however, in the name of different consignees by using the same modus operandi. The details are as follows: Bill of Lading No. Date Container No. Customs Manual Gate Pass No. Date Concor Gate Pass No. Date KKLUSIN100815 dt.06.05.12 KKFU7222266 9001/25.05.12 GPCC525739 Dt.25.05.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was Ravi but as per Karandeep it was Raju. But corroboratively it is mentioned that the containers were taken out from ICD TKD on the basis of manual gate passes. As already observed that forensic examination of these manual gate passes has proved that those were bear forged and fake signatures and stamps. Drivers Chutan and Laxmi Das corroborated that containers got destuffed at godown in Nangloi. Based on these statements, godown at Nangloi got searched. Goods seized and godowns sealed vide respective panchnama dated 30.05.2012. 36. DRI further received the information from the office of Commissioner of Customs, ICD,TKD. Om 31.05.2012 that statement of one of the mastermind, Ajit Singh Chadha has been recorded. He admitted that he alongwith Mr.Rohit Sakhuja, both have trading business in Karol Bagh, that they have been importing ACs. LCD etc. in the name of two companies namely M/s.M.C.Overseas and M/s. Star Aircon, both being jointly owned by said Ajit Singh Chadha and Rohit Sakhuja. Shri Sandeep Kumar S/o of Shri Rampal Singh acknowledged to be hand in glove with Shri Rohit Sakhuja in the fraudulent clearances. He admitted to have destroyed his SIM card and mobile there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R, ICD,TKD and Shri S.K.Dubey, Senior Executive (Commercial Operation), CONCOR, ICD, TKD, New Delhi had issued the CONCOR job orders without verifying the particulars of the bills of entry, most importantly the port to which the bills of entry pertained to. Though he pleaded it to be bonafide mistake made on the basis of Customs gate passes shown 45. K Line Singapore Pte Ltd. is observed to have colluded with shipper and abetting the impugned import of goods. 46. Shri Vinod Kumar, Labour Contractor, admitted that he provided labourers for unloading of said eight containers at Nangloi at instance of Mr.Rohit Sakhuja as he was doing business of loadinig and unloading for him for last 10-12 years. From his statement, it is clear that he had knowledge that these containers had air conditioners and R-22 gas cylinders which were destuffed by his labour at Nangloi godowns. Rohit and Ajit had godown at Todapur, New Delhi also. 47. We also observe that several summons were issued to Shri Ajit Singh and Rohit Sakhuja but they did not appear in response to the same. On account of their non-compliance of summons issued under section 108 of Customs Act, 1962, complaints for offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence cannot be correlated with the goods detained/seized in the godowns. For example, in bill of entry no.6771348 dated 09.05.2012 and its invoice, the model no. of split O General air conditioner has been declared as AOG18A . In the related packing list, the outdoor and indoor unit model nos. have been mentioned as AOGR18AETH/ASGA18AET and AOGR18AAT/ASGA18ABCW detained/seized at the various godowns. Hence, it appears that in the bills of entry of M/s.M.C.Overseas and M/s.Star Aircon the complete model nos. of the air conditioners were not declared presumably to undervalue/misdeclare the goods. Hence, these cannot be correlated with the goods detained/seized at the various godowns wherein the complete model nos. have been found to be mentioned. Moreover, as already discussed above, in detail, majority of the detained/seized air conditioners were found without mandatory labeling requirements in respect of consignments imported through the legal Customs channels. Hence, such goods cannot be correlated with the bills of entry submitted by Shri Rohit Sakhuja and appear to have been removed in contravention of the legal provisions in this regard. 50. We do not find any evidence f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi. (2) In the above investigation, DRI recorded statement of 120 persons and collected voluminous documents. (3) Five godowns got searched and examined by the DRI on 30.05.2012, 31.05.2012 and 7.6.2012. Searches lead to the recovery of such number of cylinders of R-22 gas, cigarettes and air-conditioners as has been tabled meticulously by the adjudicating authority below. (4) Live consignment of Rohit Sakhuja as were examined by ICD, Bhalbhgarh and cleared on provisional basis were also found to havfe air conditioners and TVs imported in the name of M/s. M.C.Overseas and Star Aircon with Shri Manu Chopra as representative proprietor. As observed above, both of them (Rohit Sakuja and Ajit Chadha) acknowledged him to be dummy proprietor of the company opened by them for illegally importing and clandestinely removing the goods from Customs area on the basis of forged customs gate passes. 53. All the above observations about evidence collected these are sufficient to hold that there is meticulous investigation wherein voluminous documents obtained which corroborated testimony recorded during investigation proving the correctness of adjudication. Thus, we hold that we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Ajit Singh Chadha for clandestine removal of containers from ICD,TKD. They knew that the goods are illegally imported by Shri Rohit Sakhuja and Shri Ajit Singh Chadha by adopting such modus operandi so as to defraud the competent authority. 57. All the concerned i.e. employees, transporters, the labourers/contractors, CHA the dummy proprietors of firms Shri Rohit Sakhuja and Shri Ajit Singh Chadha have acknowledged that they knowingly indulged in impugned fraudulent act of removing illegally imported goods from customs area. Their statements have already been appreciated above. We do not find anything which may falsify testimony of any of these witnesses. We do not find any infirmity in the findings where all these people are held responsible for abetting and facilitating impugned fraud committed for clandestine removal of the goods and improper importation of such goods also. Shri Kamal Virmani also has acknowledged about knowingly storing, distributing and selling illegally imported air conditioners and prohibited R-22 gas cylinders. Shri Satish Kumar also acknowledged about knowingly purchasing R-22 gas cylinders that those restricted goods have been illegally imported. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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