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TMI Blog2024 (7) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... e other co-accused and investigations undertaken by the department. It is thus borne out from records that the appellant was in direct touch with the key conspirator Sujan Sharma and had knowingly associated with him in the facilitation and smooth clearance of the subject attempted export. The plea of the appellant that he was mainly acting as a commission agent actually does not hold any substance and is not borne out with evidence. In any case it is a recorded fact and an admitted position by the appellant that he had procured the consignment and handed over the consignment documents to the Customs Broker for onward clearance. It is an admitted fact that the appellant was not only in constant touch with the mastermind who remained unreachable for the authorities but also known common associates like Vinod Gupta working at Indo-Nepal border. The complicity and nexus of the appellant is undisputed. It is obvious that the appellant for certain monetary considerations has played the role of a middleman between the actual operators and perpetrators of the crime and the exporters. The role of the proprietor of M/s. Arihant Logistic Sushant Sharma has been well documented in the show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough Raxaul Customs Border on 30.03.2014 and route in transit was declared as Raxaul- Motihari-Mujaffarpur-Patna-Nawada-Barhi-Dhanbad-Asansol- Panagarh-V Bridge-Kolkata . (iv) 56 packages of Nepalese Cane Handicrafts Goods under H.S. Code 6913.90, having net weight 5900 kgs and valued USD 15972.00 was declared to be laden in the said container. (v) A certificate of origin, issued by the Federation of Nepalese Chamber of Commerce Industry (FNCCI) bearing number 192763 was enclosed. (vi) Commercial Invoice of M/s. Bhadrakali Export Pvt.Ltd. was under number BEPL 07/70-71 dated 28.03.2014 showing quantity as 124 pcs of basket, stool, cloth stand etc. contained in 56 packages. (vii) Entry gate pass bearing number EBP14004778 dated 07.04.2014 was issued by KoPT authority at 16.11.20 hrs for entry of vehicle number JL-01K-8424 in favour of the driver Sri Sujit Kumar Roy (having driver I.D. S46764, ISSUED BY KoPT) for the purpose of unloading of container number TRHU2987633 [20 ] in loaded condition, container agent being Hanjin Shipping India Private Limited and CHA being Bose Enterprise . (viii) Export Cart-in Order issued by Bose Enterprise, 4, N.S. Road, Standard Chartered Building, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. In his statement, he stated that he had got in touch with Sujan Sharma through Arup Mukherjee. CDR analysis of the mobile number used by Sujan Sharma revealed that he was in constant touch with Shri Sujan Sharma . It also appears that Shri Srikanta Adhikary helped Shri Sujan Sharma to find out a business place (table space) at 29, R.N. Mukherjee Road, Kolkata-700001 and also indulged in processing of documents for customs clearance through CHAs, using his credentials. It also appears that he had knowingly involved himself in this smuggling activities against monetary consideration and avoided to provide crucial information regarding the whereabouts of Shri Sujan Sharma. It thus appears that Shri Srikanta Adhikary had rendered himself liable for penal action under Section 114(i) of the Customs Act, 1962 for his aforesaid omission. 8. Before dwelling on the order of the lower authority, it would be appropriate to refer to section 114 (i) of the Customs Act vide which the appellant has been subjected to penal liability. 114. Penalty for attempt to export goods improperly, etc. Any person who, in relation to any goods, does or omits to do any act which act or omission would rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Satya Narayan Park, Thakur Mahal), 3rd Floor and he met him twice there; that, Shri Arup Mukherjee gave him the information like vehicle no. of the instant consignment (Nepal CTD) about their arrival at NSD Port, which was later on seized by DRI Kolkata; that, he did not receive any call from Sujan Sharma after the interception of the consignment on 07.04.2014 as his phone was switched off. Thereafter, he made call to his close associate Vinod Gupta at 09430984751 as Vinod used to pay him on behalf of Sujan Sharma. Vinod was working at Raxaul border and used to do clearing work there; that, he failed to explain how goods i.e. wooden logs, suspected to be red sanders other than the declared one in Nepal CTD Export consignment was found in the container no TRHU 2987633, intercepted by DRI 10. From the aforesaid testimony of the appellant, it is evidently clear that the appellant had a close business relationship with the kingpin/mastermind of the case, that his testimony regarding working as a commission agent is not borne out of records, that the appellant had himself admitted before the authorities that he was an employee of Bose Enterprises CHA firm in the case. It is admitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oker for onward clearance. It is an admitted fact that the appellant was not only in constant touch with the mastermind who remained unreachable for the authorities but also known common associates like Vinod Gupta working at Indo-Nepal border. It is an undisputed position that the appellant had helped identify Office space at Kolkata for the key conspirator. All this establishes the fact that the appellant was throughout working in close proximity with the key conspirator Sujan Sharma in this case. It, therefore, belies logic that the appellant without having any idea about the nature of export cargo, chose to assign the export work to the Customs Broker firm of which he admitted to be an employee. The complicity and nexus of the appellant thus is undisputed. It is obvious that the appellant for certain monetary considerations has played the role of a middleman between the actual operators and perpetrators of the crime and the exporters. The role of the proprietor of M/s. Arihant Logistic Sushant Sharma has been well documented in the show cause notice and thoroughly analysed by the adjudicating authority in the order. It is however, paradoxical that the conspirator himself remain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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