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TMI Blog2025 (2) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... statement vide his letter dated 28.07.2015. However, his statement was again recorded on 04.08.2015, wherein he has reiterated what he has stated in his earlier statements dated 23.05.2015 and 26.05.2015. Thus, it is observed that the retraction was only an after thought, which need not be taken cognizance as he has affirmed his earlier statements again in his subsequent statement after the retraction. Thus, the statements given by the appellant can be relied upon against him to establish his role in the offence. As the role of the appellant in the offence committed has been established based on his own admission as well as the statements of different persons concerned like Sri Pravin Kumar Singh, Sri Srimonta Rakshit, Sri Man Singh, Sri Akhilesh Singh and Mr. Matin, it is held that the appellant is liable for penalty as per Section 112(b) of the Customs Act, 1962. Conclusion - The Appellant had knowingly or consciously involved himself in the alleged act of smuggling. Thus, the appellant has abetted the illegal smuggling activities and thereby connived with the smuggling racket for smuggling of cigarettes in to the country. Accordingly, the ld. adjudicating authority has rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. In the impugned order, a penalty of Rs.50,00,000/- was imposed on the Appellant under Section 112(b) of the Customs Act, 1962. 4.1. Aggrieved against the imposition of penalty, the appellant has filed is appeal. 5. The appellant submits that the entire case against him is based upon the statements recorded behind his back. It is his submission that inspite of specific prayer by him, the opportunity of cross- examination of such persons who have given the statements, was not granted by the Ld. Adjudicating Authority. The Hon'ble Supreme Court of India in several occasions had categorically held that no reliance can be placed upon such statements to arrive at an adverse conclusion without granting opportunity of cross-examination. The appellant submits that in the present case, he had merely acted as per direction of Mr. Rajesh Kumar of Nepal and he had no personal interest in the present case. Moreover, he had no personal understanding on knowledge of diversion of goods in the Nepal-bound import consignment. 5.1. The appellant submits that the Ld. Adjudicating Authority while passing the Impugned order had merely considered the initial statements extracted from the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings in the impugned order. He submitted that the Appellant played an active role in the commission of the offence. Appellant arranged the godown where the smuggled cigarettes were replaced. He has helped the smuggling of cigarettes on an earlier occasion also. Appellant helped in identifying the CHA for clearance of the imported goods. Thus, he submitted that penalty has 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. 7. Heard both sides and perused the appeal records. 8. We observe that the appellant has filed this appeal against the penalty of Rs.50,00,000/- imposed on him in the impugned order for his role in the alleged offence of smuggling of cigarettes in the past and in the present case. 8.1. Regarding the role played by the Appellant, we observe that intelligence gathered by DRI officers indicated that a smuggling syndicate was attempting to smuggle cigarettes of foreign origin into India in the guise of Nepal import in a container bearing No. GESU5984886 (40 feet) and, on examination, the subject container which was declared to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er his instruction, the container No. VMLU 3707024 (20') was broken open and the cigarettes were taken out of the container and in their place the stationery goods were put in matching with the CTD. The cigarettes taken out of the container No. VMLU 3707024 (20') were dispatched by Sri Prasad to Delhi, Ahmedabad, etc through couriers which were also arranged by him. Thus, it appears evident that Sri Santosh Kumar Prasad had been knowingly Involved in the illegal activity of smuggling of foreign origin goods without payment of Customs duty. 8.3. We observe that Shri. Man Singh was having a truck bearing registration No. WB-23B-6159, in which he has carried some goods in the container No. VMLU 3707024 (20'), as directed by the appellant, Shri Santosh Kumar Prasad. In the midnight of 29/30.04.2015 at about 00.30 hrs, the driver of the said truck called Shri. Man Singh and informed that Shri Santosh Kr. Prasad had taken his truck loaded with the container to a godown and he wanted to replace the goods of the container. Shri Man Singh allowed the appellant, Shri Santosh Kr. Prasad to do so as the goods belonged to him (Santosh Kr. Prasad). Thus, we observe that Shri. Santosh Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Cargo of M/s Balaji Traders on 17.04.2015; thatas per the instruction of Rajesh Kumar he went to Kolkata Airport, where a person gave him the documents required for clearance of the said consignment; and as per the Instruction of Rajesh Kumar he collected the money from another person at Burrabazar; thathe knew one person named Sri Pravin Kumar Singh who handled clearance work of his (Santosh) Import consignment of shoes and house hold item.As Sri Pravin had never dealtwith Nepal bound cargo, Sri Praveen introduced him to one Sri Srimonta Rakshit, who agreed to do the job; thathe (Sri Santosh) provided all the documents to Sri Rakshit along with the money received from Rajesh Kumar and the consignment was cleared on 27.04.2015; that the consignment contained stationery goods as declared in Invoice No. MW/BT/150404 dated 04.04.2015 and packing list; that he arranged the transporter named Sanjeev Singh; that he earned Rs. 5000 from that consignment. He further submitted that similarly he received the documents including the Invoice No. MW/BT/150507 dated 07.05.2015 for the second consignment of the sald M/s Balaji Traders around 13.05.2015 along with the amount of Rs. 45000/- from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 112(b) of the Customs Act, 1962. 8.7. In view of the above findings, we hold that the Appellant had knowingly or consciously involved himself in the alleged act of smuggling. Thus, we hold that the appellant has abetted the 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 under Section 112(b) of the Customs Act, 1962. However, regarding the quantum of penalty imposed, we observe that the appellant is an intermediary acted as per the directions of Shri. Rajesh Kumar of Nepal. He was not the ultimate beneficiary of the smuggled goods. Thus, we observe that the penalty imposed on him is very high and it can be reduced to commensurate with the role played by him in the offence. Accordingly, we reduce the penalty imposed on the appellant in the impugned order from Rs.50,00,000/- to Rs.25,00,000/-. 9. In view of the above, we hold that the appellant is liable penalty under Section 112(b) of the Customs Act, 1962. However, we reduce the penalty imposed on the appellant from Rs.50,00,000/- to Rs.25,00,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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