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TMI Blog2024 (11) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... lant No. 1 has abetted the act of illegal smuggling activities and thereby connived with the smuggling racket for smuggling of cigarettes in to the country. Accordingly, we hold that the ld. adjudicating authority has rightly imposed penalty on the Appellant No. 1 under Section 112(b) of the Customs Act, 1962 in the impugned order and hence, we uphold the same. Regarding the penalty imposed on the Shri Pravin Kumar Singh (Appellant No. 2), we observe that penalty has been imposed on him for abetting the alleged offence and for the role played by him in the past and present smuggling activities. The role played by him has been elaborated by the ld. adjudicating authority of the impugned order. From the statements of Shri Santosh Kumar Prasad and Shri Srimonta Rakshit, it is evident that Shri Pravin Kumar Singh has refused the clearance work of the said consignment brought to him and advised Shri Santosh Kumar Prasad to approach Shri Srimonta Rakshit as he has no experience of clearance of Nepal bound transit containers. In respect of clearance of the goods imported through the container GESU 5984886, we observe that Shri Santosh Kumar Prasad had come to his office again on 18/19.05. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for disposal by way of a common Order. 2. The facts of the case are that based on a specific intelligence received by the Kolkata Zonal Unit of the Directorate of Revenue Intelligence (DRI) that a smuggling syndicate is attempting to smuggle cigarettes of foreign origin into India in the guise of Nepal import in a container bearing No. GESU5984886 (40 feet) through Kolkata Port and the goods are being mis-declared as Stationery Goods in the concerned Customs Transit Declaration (CTD) with the intention to replace the declared goods in India, the officers of the DRI initiated an investigation. The Officers located the above container at the Netaji Subhash Dock, Kolkata and subjected it to 100% examination. Upon examination, the Officers found that 649 cartons of Gudang Garam International brand filter cigarettes of Indonesian origin had been concealed inside the container declared to contain stationery goods. 3. After investigation, a Show Cause Notice dated 20.11.2015 was issued inter alia proposing confiscation of the illegally imported cigarettes in the guise of stationery items, along with penalties for the appellants herein for their role in the alleged offence. 4. On adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority has not given any finding about his involvement in the alleged smuggling activity, in the impugned order. It is also submitted that his name has been brought in only by Shri Santosh Kumar Prasad which alone cannot be relied upon to implicate him in the commission of the alleged offence; the adjudicating authority has not adduced any corroborative evidence to substantiate the allegation. Accordingly, it is submitted by the Appellant No. 2 that the penalty imposed on him under Section 112(b) of the Customs Act, 1962 is liable to be set aside. 6. The Ld. Authorized Representative of the Revenue reiterates the findings in the impugned order. He submitted that the Appellants played active role in the commission of the offence. Appellant No.1 arranged the godown where the smuggled cigarettes were replaced. He has helped the smuggling of cigarettes on an earlier occasion also. Appellant no.2 helped in identifying the CHA for clearance of the imported goods. Thus, he submitted that penalties have been rightly imposed on them under Section 112(b) of the Customs Act, 1962 by the ld. adjudicating authority. Accordingly, he supported the imposition of penalties on the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he had been doing the transport of export and import containers for a long period of time (30 years) and it is quite natural that he must have minimum knowledge that the goods have to be delivered intact to the consignee and he must have been aware that Nepal bound sealed containers cannot be opened and its contents replaced in Indian territory. It is hard to believe that without any such understanding he allowed breaking open of the sealed container and replacing the goods. Further Sri Man Singh arranged the godown belonging to Sri Akhilesh Singh for storing of the stationery goods of Santosh Kumar Prasad for 4/5 days, which was supposed to be replaced with the cigarettes of container No. GESU 5984886 (40'). Thus from the conduct of Sri Man Singh it would appear that in the capacity of transporter he in connivance with Sri Santosh Kumar Prasad abetted the diversion of goods from the Nepal bound container No. VMLU 3707024 (20') and made an attempt for the second one i.e. GESU 5984886 (40'). It would thus appear to be quite evident that Sri Man Singh was well aware of the smuggling activities smuggling syndicate involved in the subject case who diverted foreign good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Shri Akhilesh Singh and allowed the goods meant for Nepal to be replaced in Indian territory. It is hard to believe that he allowed the opening of the earlier container bearing no. 3707024 without knowing that it contained smuggled cigarettes. Further it is observed that Shri Man Singh arranged the godown belonging to Sri Akhilesh Singh for storing of the stationery goods of Shri Santosh Kumar Prasad for 4/5 days, which was supposed to be replaced with the cigarettes of container No. GESU 5984886 (40'). Thus, from the conduct of Shri Man Singh, it is evident that in his capacity as a transporter of goods, he connived with Shri Santosh Kumar Prasad and played an active role in the diversion of goods from the Nepal bound container No. VMLU 3707024 (20 ) on an earlier occasion and made an attempt for the second one i.e. GESU 5984886 (40'). Thus, the evidences available on record indicate that Sri Man Singh was well aware of the smuggling activities of the smuggling syndicate involved in the subject case, who diverted smuggled cigarettes concealed in the Nepal bound container No. 3707024, in transit. Thus, we hold that the evidences available on record prove that Shri Man S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration. It is hard to believe that Sri Srimonta Rakshit and Sri Pravin Singh were kept in dark by their friend Santosh Kumar Prasad about this smuggling activity. It would thus appears that they were well aware of the smuggling activities by using the Nepal bound import containers of the subject case which they knew or had reasons to believe were liable for confiscation under Section 111(a), 111(d), 111(f), 111(h), 111(m) and 111(n) of the Customs Act, 1962, and thus liable for penalty under Section 112(a) and 112(b)of the Customs Act, 1962. 9.1. From the facts on record, we observe that Shri Pravin Kumar Singh was an employee of the CHA-firm M/s. Overland Agencies, whose licence was suspended. His name has been brought in the present activity by Shri Santosh Kumar Prasad. However, from the role played elaborated in paragraph 23.5 of the impugned order, we observe that there is no specific evidence brought on record to implicate him in the smuggling activity. We observe that M/s. Sadguru Forwarders Private Limited is the CHA firm who has handled this consignment and Shri Sukhendu Maity is their Authorized Signatory, who handled the job of import consignments. We observe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and in his statement Shri Pravin Kumar Singh stated that he did not know M/s Balaji Traders personally, but he knew one person named Sri Santosh Kumar Prasad, who met him 8-9 months before in Khidderpore market, Kolkata. It was also stated that Shri Santosh Kumar Prasad had given him the clearance job of one imported shoes consignment in March, 2015 for which he had made all necessary arrangement for clearance of the goods; Shri Santosh Kumar Prasad again met him in the month of April, 2015 for one import consignment of M/s. Balaji Traders, Nepal. As he had not done any job related to Nepal Import till that date, he had introduced Shri Santosh Kumar Prasad to his friend Shri Srimonta Rakshit and the said consignment was cleared by him in the month of April, 2015. He also stated that he did not know anything about the goods imported in the said consignment; Shri Santosh Kumar Prasad had come to his office again on 18/19.05.2015, when he was not available in the office; Shri Prasad had informed him over phone that he had left some documents in his office related for clearance of one more Nepal bound import consignment of the same party. In turn, he had given the said documents to S ..... 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