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TMI Blog2024 (5) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 112 and 114AA must be sustained and they call for no interference. Sunil Aidasani - claims to have never received the summons and hence he had not appeared to give his statements - As far as the allegations that 12 of the 19 containers actually belonged to him are concerned, these are based on the statements of Bhalla. A statement made by Bhalla u/s 108 of the Customs Act will be relevant to prove the case only as per section 138B. This requires the adjudicating authority to examine the person making the statement and decide if it is to be admitted in evidence. Needless to say that if it is admitted in evidence and is proposed to be used against another person, such person should be allowed to cross examine the person making the statement. Since the procedure prescribed u/s 138B was not followed, the statement is not relevant to prove the case against Aidasani. We also find that neither section 112 nor section 114AA provide for penalty for not responding to summons or not cooperating with the investigation. Therefore, the penalties imposed on Aidasani in the impugned order cannot be sustained and need to be set aside. Naveen Gulabani - T he allegation in the SCN is that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DRI officers examined the cargo imported in 19 containers under a Panchnama and recovered 31 MT of fire crackers (whose import is restricted), 170 MT of glass Chattons, industrial needles, fabrics, cosmetics, etc. which were not declared in the Bills of Lading. 5. It was found that these goods were imported in the name of five firms. These five firms had obtained importer exporter codes [IEC] and they were all owned by Shri Inder Preet Singh Bhalla [Bhalla] and Shri Manish Kumar [Manish]. These five firms are noticees no. 1 to 5 in the SCN and Shri Bhalla is noticee no. 6 and Shri Manish is noticee no. 7 in the SCN. There are no appeals by any of these seven before us against the confiscation of goods or imposition of penalties. 6. Customs Appeal No. 50144 of 2020 is filed by Shri Sunil Aidasani @ Vicky [Adsani] aggrieved by the penalty of Rs.1,00,00,000/- under Section 112 (a) (b) and penalty of Rs. 50,00,000/- under section 114AA of the Customs Act, 1962 [Act ] imposed on him. 7. Customs Appeal No. 50144 OF 2020 is filed by Shri Sushil Agarwal [Aggarwal] aggrieved by the penalty of Rs.2,00,00,000/- under Section 112 (a) (b) and penalty of Rs. 1,00,00,000/- under section 114AA of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he beneficiary. Aggarwal was following the orders of Bhalla. (c) Statement dated 15.10.2015 of Shri Rakesh Kumar Karn, Director of M/s. Seimpex Logistics, Pvt. Ltd. states that Aggarwal had enquired about the status of the goods and it does not prove that he was the beneficiary or that he was aware that any illegal act was committed. He also said that Aggarwal came into picture from April 2014 and before that Manish himself was doing the business. (d) Aggarwal was not allowed to cross examine the co-noticees on the ground that cross-examination was not a matter of right. (e) Penalty under section 112 (a) (b) and section 114AA are not imposable on the appellant. Submissions on behalf of Naveen Gulabani 11. Shri V R Sethi, learned counsel made the following submissions on behalf of Shri Naveen Gulabani (a) By the impugned order, the Principal Commissioner imposed penalty of Rs. 20 Lakhs under section 12 (a) (b) and penalty of Rs. 10 lakhs under section 114AA on Shri Gulabani. (b) Shri Gulabani is a trader of miscellaneous household items in Delhi. He learnt about the alleged imports only when he received a copy of the SCN. (c) The allegation against Shri Gulabani in the SCN is that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be proved. (x) As far as Sunil Adiasani is concerned, he was the sourcing agent in China working for SS Import Export Ltd. (xi) He had not appeared despite issuing several summons. However, he submitted his reply to the SCN which was considered by the adjudicating authority. (xii) Aidasani sought cross-examination of the persons who made the statements but these were declined giving reasons by the Principal Commissioner. (xiii) The appeal of Aidasani may be rejected and the impugned order may be upheld. (xiv) Shri Naveen Gulabani had not appeared before the officers despite issuing multiple summons. However, he submitted a written reply to the SCN and thereafter, the Principal Commissioner passed the impugned order. The penalties imposed on Shri Gulabani need no interference. Findings 13. We have considered the submissions on both sides and perused the records. Penalties have been imposed under sections 112(a) (b) and 114AA of the Act which are assailed by the three appellants. These sections read as follows: 112. Penalty for improper importation of goods, etc. Any person, (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The role which he played did not end there. He would follow up the movement of the containers and after they have been cleared, he had even accompanied the goods upto the godown of the importer at Sitapur where Manish would take over and distribute the goods to the buyers. Manish would distribute them either on instructions of Bhalla or on the instructions of Sushil Aggarwal. 20. After Manish had sold the goods, Sushil Aggarwal would collect the sale proceeds and distribute them to the CHA, Bhalla and others. 21. We have no doubts in our minds that the Sushil Aggarwal was not merely an indenting agent but was an active player involved at every stage in the entire operation from placing orders for the imported goods including the import of the prohibited goods, mis-declaration in the documents, clearance of the goods, transporting them to the godown and selling them, receiving the sale proceeds and further distributing them among various operators. 22. We find the penalties imposed on him under Section 112 and 114AA must be sustained and they call for no interference. Sunil Aidasani 23. The allegations against Aidasani are that he was the supplier of the seized goods, that 12 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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