9911796707
TMI Blog2024 (5) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... of which noticee no. 8 Shri Sushil Aggarwal, noticee no. 9 Shri Sunil Aidasani and noticee no. 10 Shri Naveen Gulabani filed these three appeals. There are no appeals by others. 2. Therefore, the issue to be decided in these three appeals is the penalties imposed on them. Although each of these three appeals prayed for quashing of the impugned order, that prayer can only be taken as 'insofar as it applies to that appellant' because no appellant has either a reason to be aggrieved by that part of the order which affects some other noticee or has any locus standi to appeal on behalf of another noticee. 3. We have heard learned counsels for the appellants and learned authorised representative for the Revenue and perused the records. 4. The facts which lead to the present appeal are that DRI received intelligence that some goods whose import is restricted, such as fire crackers and some high value items such as glass chattons were smuggled into India concealing them in containers of some other cargo. Acting on this intelligence, 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 gl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence cannot be taken on record. The statements were also retracted. (vii) Cross examination of witnesses and co-accused were denied to the Aidasani which violated the principles of natural justice. (viii) A letter had been written by Aidasani to DRI stating that the goods imported by Bhalla Enterprises, KM Enterprises and Preet Enterprises did not belong to him. This letter was not made a relied upon document. (ix) The appellant had no way of knowing that there was alleged misuse of import as the appellant was only the sourcing agent. Submissions on behalf of Sushil Aggarwal 10. Shri Pradeep Jain and Shri Sambhav Jain, learned counsels made the following submissions on behalf of Shri Aggarwal: (a) The statement of Shri Sunil Kumar, CHA dated 1.7.2015 only indicates that Aggarwal had made the CHA and Bhalla meet for the business and all relevant documents were provided by Bhalla and Manish to the CHA. (b) The statement of Shri Sunil Kumar CHA dated 21.7.2015 states that Aggarwal did some jobs on random basis with respect to the goods and it does not say that he was the owner of the goods or the beneficiary. Aggarwal was following the orders of Bhalla. (c) Statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission. (ii) After orders were placed, he would receive the original Bill of Lading from Bhalla by hand or through courier and give it to the CHA for getting the delivery order and for getting the goods cleared. (iii) He handled the goods imported by the five firms controlled by Bhalla. (iv) He also used to keep track of the containers and had accompanied Manish to Sitapur for unloading the goods. (v) Thus, Shri Sushil Aggarwal was not merely an indenting agent but was actively involved at all stages of the import viz., procurement, concealment, transportation, customs clearance and delivery of the goods for monetary gain. (vi) Shri Manish Kumar would thereafter distribute the goods as per the directions of either Bhalla or Sushil Aggarwal and collect money for the goods sold. (vii) Thereafter, Sushil Aggarwal would collect money from Manish and distribute it to the CHA and others. (viii) These details emerged from his voluntary statements made on 14.10.2015 and 23.11.2015. (ix) Cross examination sought by Shri Sushil Aggarwal was not allowed because the allegations against him were based on his own admissions. What is admitted need not be proved. (x) As far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty under 112(b) can be imposed if the person acquires possession of or is in anyway concerned in carrying, removing, depositing, etc. of the goods which he knows or has reason to believe are liable to confiscation under section 111. 16. Penalty under section 114AA can be imposed if the person has knowingly or intentionally makes or signs or causes to be made or signed any statement or document which is false or incorrect. 17. Sushil Aggarwal: Admittedly, he was the indentor in China and would connect buyers from India and the sellers from China and when the deal is struck, he would receive commission for his services. 18. However, as his statements indicate, his role does not end with placing orders. After the goods have been shipped, he would collect the Bills of Lading from Bhalla and give them to the CHA to get the goods cleared and further to get the delivery order and obtain the goods from the Shipping Line. Evidently, as the person who placed the orders and got the goods shipped, Sushil Aggarwal must be fully aware of what was actually bought and what was mentioned in the Bills of Lading and that prohibited goods were bought and shipped but were not declared in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that neither section 112 nor section 114AA provide for penalty for not responding to summons or not cooperating with the investigation. 29. Therefore, the penalties imposed on Aidasani in the impugned order cannot be sustained and need to be set aside. Naveen Gulabani 30. As far as Naveen Gulabani is concerned, the allegation in the SCN is that he is an employee of Sunil Aidasani@ Vicky and that he had not responded to the summons and had not cooperated with the investigation. 31. According to Gulabani, he was never the employee of Sunil Aidasani@ Vicky- the alleged overseas supplier of the goods. 32. We find neither section 112 nor section 114AA makes one liable to penalty either for being an employee of the overseas supplier of goods nor for not responding to summons and not cooperating with the investigating agency. Therefore, the penalties imposed on Gulabani cannot be sustained and need to be set aside and we do so. 33. Therefore, the penalties imposed on Gulabani in the impugned order cannot be sustained and need to be set aside. 34. In view of the above: (a) Customs Appeal No. 50194 of 2020 filed by Sushil Aggarwal is dismissed and the impugned order is upheld q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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