Custom, Excise & Service Tax Tribunal
Celebi Delhi Cargo Terminal Management ... vs Principal Commissioner, Customs, Acc ... on 25 January, 2023
1
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Custom Appeal No.50879 of 2020 (SM)
(Arising out of Order-in-Original No.03/2020/U.G./Principal Commissioner dated
17.01.2020 passed by the Principal Commissioner of Customs (Import), ACC
Imports, New Customs House, New Delhi).
M/s. CELEBI Delhi Cargo Terminal Appellant
Management India Pvt. Ltd.,
International Cargo Terminal, IGI Airport,
New Delhi-110 037.
VERSUS
Principal Commissioner of Customs Respondent
ACC Imports, New Customs House, Near IGI Airport, New Delhi-110 037.
WITH Custom Appeal No.51060 of 2020 (SM) (Arising out of Order-in-Original No.03/2020/U.G./Principal Commissioner dated 17.01.2020 passed by the Principal Commissioner of Customs (Import), ACC Imports, New Customs House, New Delhi).
M/s. Shri Krishna Logistics Management Appellant RZG-137, Raj Nagar, Part-II, Palam Colony, Near Shyam Mandir, New Delhi-110 045.
VERSUS Principal Commissioner of Customs Respondent ACC Imports, New Customs House, Near IGI Airport, New Delhi-110 037.
WITH Custom Appeal No.51061 of 2020 (SM) (Arising out of Order-in-Original No.03/2020/U.G./Principal Commissioner dated 17.01.2020 passed by the Principal Commissioner of Customs (Import), ACC Imports, New Customs House, New Delhi).
Shri Upendra Kumar Chaubey Appellant
S/o Sh. Dinesh Kumar Chaubey,
Village Ganghara Khurd,
Post Rehi, P.S. Lalganj,
Dist.-Mirzapur, U.P.-231 211.
VERSUS
Principal Commissioner of Customs Respondent
ACC Imports,
New Customs House, Near IGI Airport,
New Delhi-110 037.
2
WITH
Custom Appeal No.51163 of 2020 (SM)
(Arising out of Order-in-Original No.03/2020/U.G./Principal Commissioner dated 17.01.2020 passed by the Principal Commissioner of Customs (Import), ACC Imports, New Customs House, New Delhi).
Shri Dhananjay Kumar Singh Appellant
S/o Shri Ravinder Singh,
R/o H.No.23/24, Gali No.13,
Sangam Vihar, Ph-1,
Dharampura Extension, Najafgarh,
New Delhi-110 043.
VERSUS
Principal Commissioner of Customs Respondent
ACC Imports,
New Customs House, Near IGI Airport,
New Delhi-110 037.
AND
Custom Appeal No.50121 of 2022 (SM)
(Arising out of Order-in-Original No.03/2020/U.G./Principal Commissioner dated 17.01.2020 passed by the Principal Commissioner of Customs (Import), ACC Imports, New Customs House, New Delhi).
Shri Abhishek Mishra Appellant
S/o Late Sh. Ashok Mishra,
Village Tilwar, Post Office-Dandupur Anai,
District Varanasi, U.P.-221 201.
VERSUS
Principal Commissioner of Customs (Import) Respondent
New Customs House, Near IGI Airport,
New Delhi-110 037.
APPEARANCE:
Ms. Vidushi Shubham, Advocate in Appeal No.C/50879 of 2020, Ms. Sunaina Phul, Advocate in Appeal No.C/51060, C/51061 & C/51163/2020 and Shri B.L. Garg, Advocate in Appeal No.C/50121 of 2022 for the appellants.
Shri Mahesh Bhardwaj, Authorised Representative for the respondent. CORAM:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER NOs.50071-50075/2023 DATE OF HEARING: 22.08.2022 DATE OF DECISION: 25.01.2023 3 ANIL CHOUDHARY:
This bunch of appeals arises from the common impugned order- in-original and hence, are taken-up together for hearing and disposal.
2. The appellant, Shri Krishna Logistics Management is a CHA concern, proprietor of which is Mr. Ashish Mishra having Customs Licence No.33/2016.
3. Appellant - Shri Dhananjay Kumar Singh was looking after Customs clearance works of M/s. Shankeshwar Impex Pvt.
Ltd.(Importer) since 2016. Mr. Abhishek Mishra - appellant is in appeal against imposition of penalty of Rs.1,00,000/- under Section 112 and Rs.5,00,000/- under Section 114 AA of the Act.
4. Mr. Dhananjay Kumar Singh (appellant) introduced one Mrs. Sonia of PRM International Hong Kong Ltd. to the appellant CHA - Krishna Logistics, stating that she is known to Mr. Mohit Jain, Director of M/s Shankeshwar Impex Pvt. Ltd. Therefore, without any doubt, Krishna Logistics accepted the request of PRM International for clearance of import consignment and assigned the work to Mr. Upendra Kumar Chaubey (appellant), who was the local representative of Mr. Mohit Jain in Delhi. The Customs clearance work was given to Mr. Sangam Mishra, employee of CHA- M/s. Krishna Logistics, by Mr. Upendra Kumar Chaubey.
5. Prior to filing of Bill of Entry on 28.07.2017 at Air Cargo Import Shed, attempt was made to remove the consignment covered under AWB NO.160 857 15652 dated 22.07.2017 consisting of two pallates by using a fake and fabricated gate pass no.N.201707260763 dated 4 28.07.2017, without filing the Bill of Entry and without payment of Customs duty. The said attempt to remove the goods was foiled by the Security Staff (of Celebi) posted at Gate 4 of the import shed as the security staff found mis-match in the details given in the gate pass vis a vis the marking on the pallets. On inputs received by SIIB regarding the foiled attempted removal, SIIB officers investigated the case.
6. During investigation, on 31.07.2017, M/s. CELEBI Delhi Air Cargo Terminal Management Pvt. Ltd., (appellant), who are the licensed custodian of the warehouse of import shed, handed over the following documents to Customs:-
i. Gate Pass No.N201707260763 dated 28.07.2017. ii. Statement dated 29.07.2017 of Shri Shentu Kumar, Fork Lift Driver iii. Photocopy of Gate Pass No.N201707260763 dated 27.07.2017.
iv. Copy of complaint dated 31.07.2017 made to the SHO. v. CD containing CCTV footage of the incident on 28.07.2017.
7. After the foiled attempt made on 28.07.2017 to remove the said consignment on fake/fabricated gate pass, Bill of Entry No.2656737 dated 30.07.2017 covering the said AWB, Bill of Entry was filed by M/s. Shankeshwar Impex, to cover up the foiled and failed attempted removal.
8. During further investigation certain documents viz. AWB and DO covering the shipment were procured from airline office. When the 5 documents procured during the investigation were verified, it was found that Gate Pass No.N201707260763 dated 28.07.2017, which was used for attempted removal on 28.07.2017, was 'fake'.
9. It was also found that the original AWB NO.160-85715652 dated 22.07.2017 Delivery Order No. DL/17-18CI/02395 dated 29.07.2017 procured from the airline office and the import manifest filed by the airline, contained the description of goods as "Garment Accessories Without Battery" whereas the description of goods in AWB of the same number filed with the Bill of Entry No.2656737 dated 30.07.2017 was given as "Jewellery without Battery" and thus the AWB for filing the Bill of Entry was forged and fabricated with regard to description of goods. Further, the description of goods in the Bill of Entry (filed by M/s. Shankeshwar Impex Pvt. Ltd.) was given "Assorted Silver Jewellery".
10. The premises of 'M/s. Shankeshwar Impex Pvt. Ltd., Indore was searched wherefrom copy of invoice No.170092095 dated 20.07.2017 issued by M/s. AQ Trading C/o KSG Global Company, Hong Kong in the name of M/s Shankeshwar Impex Pvt. Ltd., Indore for Silver Jewellery (Assorted) for 950 kgs. Valued at USD 4,65,500/- was recovered and resumed.
11. During the investigation, statements of various persons alleged to have been involved in the foiled attempted removal made on 28.07.2017 on fake/fabricated gate pass and persons instrumental in filing of Bill of Entry No.2656737 dated 30.07.2017 on fake/fabricated AWB, as well as of importer and warehouse custodian were also recorded under Section 108 of the Customs Act, 1962. 6
12. It appeared to Revenue that the some people in connivance have attempted to remove imported goods on 28.07.2017 by using fake/fabricated gate passes and on being unsuccessful, have filed bill of entry on forged/fabricated Air Way Bill (AWB). It appeared that Mr. Dhananjay Singh - appellant, Upendra Kumar Chaubey-appellant, Mohit Jain, Abhishek Mishra - appellant, Vijay Kumar, Satish Kumar and M/s. Shankeshwar Impex have connived in attempted removal of imported goods on fake gate passes without filing bill of entry. CELEBI DELHI CARGO TERMINAL MANAGEMENT INDIA PVT. LTD.
13. So far the appellant, M/s. CELEBI Delhi Cargo Terminal Management India Pvt. Ltd. are concerned, they are custodian of the import warehouse, duly licensed under the provisions of the Act read with 'Handling of Cargo in Customs Area Regulations 2009 ("HCCA" Regulations for short). The allegation against them is that the aforementioned incidence happened on 28.07.2017, but they did not inform the Customs Department till 31.07.2017 and have informed and provided the documents only after the inquiry was started by SIIB. Further, they failed to keep the proper records of the shipment in question in M/s CELEBI Delhi Cargo Terminal Management India Pvt. Ltd., as location of the two pallets in question was shown at 2 different places. In the segregation report and Manifest/location report for IGM No.1192890 dated 24.07.2017. As per CCTV footage, the goods in question were found to have been kept on the floor, which was a third location. Further alleged, that the goods in question were shifted from pre-delivery area to final delivery area by M/s. 7 Celebi Delhi Cargo on the behest of an employee of CHA, whereas, it is required to have been done under supervision of proper staff of M/s. CELEBI, which reflects irresponsibility. Thus, M/s CELEBI has violated Section 45 of the Act read with Regulation 6 of HCCA Regulation 2009 and appears to be liable for penalty under Section 112 of the Act and Regulation 12(8) of HCCA Regulations.
14. Ld. Commissioner in the impugned order has held that evidently the two pallets in question were scrupulously moved around to pre delivery area then to final delivery area and upto the delivery gate. The appellant did not inform the Department about the same until the Department stepped in for investigation. Further, the appellant in defence reply, have not made any submissions with regard to such movement and failed to immediately report such attempted removal.
15. As regards the allegation of non-maintenance of proper records, the appellant's stand that the process/documentation, storage and movement of any cargo, subjected to custody of CELEBI is properly recorded in its books/documents and monitored with the help of CCTV and same has been provided to the Department during investigation. Rejecting the contention, ld. Commissioner has held that CELEBI has failed in their duties to maintain proper records as the goods were lying at a third location and not as per record.
16. So far the next allegation that the goods in question were shifted to final delivery area by CELEBI staff wrongly, at the behest of the employee of CHA and not at the instructions of the responsible staff of CELEBI, thus, M/s. CELEBI have compromised the safety and security of the goods. The contention of CELEBI is that they have 8 installed best possible internal control and available security measures including but not limited to x-ray screening machines, security personnels, CCTV cameras at the facility to cover the entire warehouse and secondly, their own security staff foiled the attempted removal. However, ld. Commissioner observed that the goods in question were moved to pre-delivery area then to final delivery area without proper instructions/supervision of CELEBI and hence, negligence on their part is established. Further, held that they have violated the provisions of Section 45 of the Customs Act, which mandates that the custodian of imported goods shall keep record of the goods and shall not permit such goods to be removed or otherwise dealt with, except with the proper permission of the Customs officers. Under the facts and circumstances, CELEBI has violated the provisions of Section 45.
M/s Shankeshwar Impex Pvt. Ltd. and Mohit Jain -Director
17. Ld. Commissioner observed that though there is no specific allegation with regard to the foiled attempt of removal of goods on fake documents, it appears that Mr. Mohit Jain was actually involved with Mr. Dhananjay Singh in attempted removal of goods from CELEBI warehouse without filing of bill of entry, on the basis of forged and fabricated gate pass. It is further alleged that faked gate pass was prepared by Mr. Upendra Kumar Chaubey, who was the employee of M/s. Shankeshwar Impex.
18. M/s. Shankeshwar Impex and Mr. Mohit Jain had filed common reply denying their involvement in the attempted removal, pleading that they were not having any knowledge of such attempted removal 9 without filing of bill of entry by Mr. Dhananjay Kumar Singh. He (Mr. Dhananjay Kumar Singh) was asked only to get the goods cleared as per the legal procedure. They do not know as to why Mr. Dhananjay Kumar Singh in connivance with other persons attempted to clear the goods scrupulously.
19. Ld. Commissioner took notice of the fact that Mr. Mohit Jain in his statement dated 20.09.2017 stated that attempted removal was made by Mr. Abhishek Mishra on the directions of Mr. Dhananjay Kumar Singh, who is his trusted clearing agent for clearing his consignment at Delhi. Further, Mr. Mohit Jain had stated that the import consignment in question was imported by M/s. Shankeshwar Impex and they had filed bill of entry after failed smuggling attempted on 28.07.2017 by Mr. Abhishek Mishra. Further, Mr. Abhishek Mishra, H-Card Holder working with Aeroship Logicare Pvt. Ltd., who was also visible in the CCTV footage, in his statement dated 13.10.2017 before the Customs, stated that Mr. Mohit Jain had asked Mr. Dhananjay Kumar Singh to remove the goods without payment of customs duty. Further, one Mr. Vijay Kumar of M/s.Gulshan Malik was also involved in attempted removal of goods and was visible in the CCTV footage and his statement recorded by the Customs on 11.08.2017, had stated that he along with Mr. Abhishek Mishra and Mr. Satish Kumar attempted to remove the two pallets of M/s Shankeshwar Impex on the directions of Mr. Dhananjay Kumar Singh and Mr. Upendra Kumar Chaubey. Further, during search in the premises of M/s Shankeshwar Impex, copies of invoice No.170092095 dated 20.07.2017 was recovered, wherein the description of the 10 goods was given as "Silver Jewellery (assorted). Whereas in the AWB dated 22.07.2017, the description of the goods was given as -
"Garment accessories without batteries. It clearly suggests that wrong description in the AWB was made purposefully. As with correct declaration, the consignment would have been stored at the valuable warehouse of CELEBI. Further, M/s Shankeshwar Impex and Mr. Mohit Jain at various points of time including in their defence reply, have admitted import of the said consignment. Thus, it is evident that Mr. Mohit Jain not only knew before hand, but was the fulcrum around which modus of attempted removal was made. Thus, the involvement of M/s. Shankeshwar Impex Pvt. Ltd. and Mr. Mohit Jain is established.
20. It is further observed that Mr. Mohit Jain has not asked for cross examination of any deponent/witness. Thus, is liable to penalty under Section 112 read with Section 111 (j) of the Act. Further, is liable to penalty under Section 114AA of the Customs Act for knowingly using the forged /fabricated gate pass in the attempted removal of the goods.
Dhananjay Kumar Singh
21. It has been alleged that he colluded with Mr. Mohit Jain of M/s Shankeshwar Impex and was involved in the foiled attempt of removal of imported goods, without filing of bill of entry in connivance with Mr.Upendra Kumar Chaubey, Mr. Abhishek Mishra, Mr. Vijay Kumar and Mr. Satish Kumar. This appellant in his defence reply including additional reply had denied his involvement and stated that the allegation is based on the statements of Mr. Abhishek Mishra, Mr. 11 Vijay Kumar and Mr. Mohit Jain. The Adjudicating Authority had allowed the cross examination of these persons, who did not appear for cross examination and thus, their statements cannot be relied upon. On the said date of attempted removal i.e. 28.07.2017, this appellant was out of Delhi at Maharashtra, which is evident from CDR obtained by the Department. This appellant urges that he is not in any way concerned with the attempted removal. Further, the allegation that the attempted removal was made by other persons on his directions is without basis and evidence, save and except the unsubstantiated statements of other persons, as it is evident that the fake gate pass was made by Mr. Abhishek Mishra and the forged AWB was made by Mr. Upendra Kumar Chaubey, which was not done as per his directions.
22. Ld. Commissioner rejecting the contentions observed that the three witnesses in spite of numerous notices/summons for cross examination did not turn up, which is not sufficient ground to render their statements irrelevant. There are also other evidences on record, independent of the statements made by such persons, which supports the allegation. Further, all the persons, whose statements are relied upon, are the co-noticees. Thus, their non-appearance for cross- examination is evidently in mutual interest and benefit of the co- accused, cannot be ruled out. Ld. Commissioner observed that Mr. Dhananjay Kumar Singh in his statement dated 02.01.2018, is in response to Question No.5, wherein he had admitted that on being asked by Ms. Sonia of PRM International Hong Kong, (Cargo Consolidator), he agreed to do the customs clearance of the shipment 12 in question for consideration of Rs.750/- per kg. or about Rs.7,00,000/-. Thereafter, he contacted Mr. Abhishek Mishra for removal from CELEBI Warehouse. Mr. Abhishekh Mishra earlier also has done such removal of goods from CELEBI Warehouse on his directions without filing of bill of entry. He also admitted that fake gate pass was got prepared on his directions, by Mr. Abhishekh Mishra. Thus, the ld. Commissioner observed that Mr. Dhananjay Kumar Singh in his own statement had admitted his involvement in the attempted removal of the goods on 28.07.2017 and thus, he is liable for penalty as an abettor under Section 112 of the Act. There is no necessity of the abettor and the abetted being in proximity of the scene of offence. Abetment is corroborated by inducement of the abetted person for committing an offence, which can be done even remaining away from the place of offence. It is further observed that this appellant in his statement had admitted that while he was away at the time of attempted removal of goods on 28.07.2017, he received a call at around 9.30 p.m. from Shri Abhishek Mishra and was informed that the consignment was stopped by a security guard of CELEBI. Thus, in spite of being away from Delhi, he was keeping a tab on the plan of removal, showing or proving his involvement. The allegation is further proved in view of the fact, in striking of deal with the cargo consolidator (Ms. Sonia) for Rs.750/- per kg. and thereafter, engaging Mr. Abhishek Mishra for the attempted removal. Interaction with Mr. Abhishek Mishra is supported by call detail records.13
23. Accordingly, ld. Commissioner held that Mr. Dhananjay Kumar Singh is liable for imposition of penalty under Section 111(j) read with Section 112 of the Act and further, liable for penalty under Section 114 AA of the Act for making arrangement and causing use of forged/fabricated gate pass. The residual penalty under Section 117 of the Act was dropped.
Upendra Kumar Chaubey
24. The allegation against him is that he conspired with Shri Dananjay Kumar Singh and gave direction to Mr. Vijay Kumar to remove the goods in association with Mr. Abhishek Mishra and Mr. Satish Kumar. This appellant denied his involvement in the foiled attempt of removal mainly on the ground that he was away at Aurangabad (Maharashtra) on 28.07.2017 and was not concerned or connected with the clandestine removal. Ld. Commissioner took notice of the statement of this appellant, wherein he specifically admitted that on being asked by Mr. Dhananjay Singh, he in the afternoon of 28.07.2017 directed Mr. Abhishek Mishra, Mr. Satish Kumar and Mr. Vijay Kumar, that the goods arrived under MWB 160- 85715652 have to be removed on the same day without filing of bill of entry. Further, Mr. Vijay Kumar in his statement recorded during investigation had stated that this appellant and Mr. Dhananjay Kumar Singh had promised him Rs.10,000/- for removal of the goods. Ld. Commissioner recorded the findings that this appellant have done act of omission and Commission, have abetted the attempted removal of dutiable goods from Customs warehouse in violation of the provisions of Section 111(j) and thus, is liable to penalty under Section 112 of 14 the Act. He is further liable to penalty under Section 114 AA of the Act for making arrangement or abetting the removal on forged documents. However, residual penalty under Section 117 of the Act was dropped.
Abhishek Mishra
25. This appellant was holding G-Card issued against the Customs broker- Aeroship Logicare Pvt. Ltd. The allegation against him is that on being asked by Mr. Dhananjay Kumar Singh, he got fake and fabricated gate passes prepared through one Mr. Pramod Kumar and the said gate pass No.N2017072603 dated 27.07.2017 was used for attempted illegal removal of the goods. Further, in the CCTV footage also, this appellant was seen involved in the attempted removal. This appellant in his defence has stated that no forgery or falsification of the documents was done by him. Mr. Dhananjay Kumar Singh had called him on his mobile phone between 5.30 p.m. to 6.00 p.m. on 28.07.2017 and told that he is sending one Mr. Pramod Kumar with the gate pass pertaining to the goods and by showing this gate pass to the security guard at 'FD' gate, these goods have to be cleared. Thereafter, he received the gate pass from Mr. Pramod Kumar at about 6.50 p.m. On the basis of the said gate pass, he attempted to clear the consignment in a bona fide way not having any knowledge of its forged nature. There is no mens rea or forgery on the part of this appellant and thus, no penalty is imposable on him. This appellant had further stated that he came to know about irregularity or forged nature of the said gate pass only when delivery was refused by CELEBI staff. Ld. Commissioner held that mens rea or knowledge 15 is not necessary for imposition of penalty under Section 112 of the Act. As regards the contention of the appellant that as he has not fabricated any gate pass, penalty under Section 114 AA of the Act is also not imposable was rejected by Ld. Commissioner, observed that penalty under Section 114 AA of the Act is imposable on use of false and incorrect documents. Mr. Abhishek Mishra has admittedly used the forged gate pass for attempted clearance. Further, observed that this appellant is a H-Card holder in Customs broker firm since 2012 and has been handling removal of imported goods. Further, this appellant had stated during investigation, that fake gate pass was prepared by Mr. Upendra Chobey. It was held that this appellant had definitive knowledge of the gate pass being fake and forged and thus, have knowingly used it for the attempted removal. Accordingly, it was held that penalty under Section 114 AA of the Act is also imposable upon him.
26. Subsequent to the foiled attempt for clearing the goods on forged documents on 28.07.2017, M/s. Shankeshwar Impex Pvt. Ltd. filed bill of entry No.21656737 dated 30.07.2017 through their customs broker, M/s. Krishna Logistic Care Management (Proprietor
- Shri Ashish Mishra) on first check basis, declaring the goods as "Silver Jewellery - Assorted". It appeared to Revenue that description of the goods - "Garment Accessory without battery" has been mentioned in Airway Bill, was altered to 'Silver Jewellery Assorted' and thus, the bill of entry was filed by forgery and fabricated Airway bill. As the goods were not properly declared in the import manifest and the attempted removal without filing bill of entry, 16 the goods were seized. Ld. Commissioner held that the goods are liable for confiscation for violation of Section 111(f) for alleged mis- declaration in the import manifest and also under Section 111(j) for the attempted removal without proper authorization. Ld. Commissioner further took notice of the fact that Mr. Mohit Jain had admitted filing of the bill of entry and had also claimed provisional release vide letter dated 01.09.2017. Thereafter, he rescinded the authorization to CHA and requested for self-clearance of the goods. Further, in his bail application before the CMM, he admitted import and ownership, as well as filing of bill of entry. Further, before the Magistrate Court, the Department also accepted Mr. Mohit Jain of M/s. Shankeshwar Impex to be the importer of the goods. Ld. Commissioner further observed that import of Silver Jewellery is neither prohibited nor restricted. Ld. Commissioner ordered confiscation of the goods being Assorted Silver Assorted Jewellery weighing 912.722 valued at Rs.3,10,84,520/- involving customs duty of Rs.58,79,170/- with option to redeem on payment of fine of Rs.60 lakhs.
27. Assailing the impugned order, ld. Counsel for the appellant - Mr. Dhananjay Kumar Singh, inter alia, urges that the statement of this appellant was recorded under coercion and his statement was recorded as dictated by the officer. Thereafter, he was arrested and thereafter remanded to judicial custody by the Court of CMM, New Delhi. At the very first instance on 11.01.2018, this appellant had retracted his statement in his bail application and had categorically denied his role or any knowledge of the attempted removal on 17 28.07.2017. Further, the impugned order is bad as an opportunity to cross examine the other co-noticees, whose statement is relied upon, was not given. Ld. Commissioner has failed to exercise the jurisdiction vested in him to ensure the attendance of witnesses. Although he allowed the request for cross examination, but the same was a nullity as he did not ensure the attendance of the witnesses for examination/cross examination. Ld. Commissioner has simply observed that he had issued 3-4 summons but witnesses did not appear. Thus, the order of penalty is bad, which has been imposed relying upon the statement of other persons in violation of the provisions of Section 138B of the Act. It is further urged that penalty has been imposed mechanically without there being any evidence of wrong doing against this appellant. Evidently, the bill of entry was filed by the importer (M/s Shankeshwar Impex) through their CHA on first check basis. Further, the goods in question-studded Silver Jewellary are not prohibited items. Further, no case of any collusion is made out with the persons, who were involved in the irregular removal of the goods on 28.07.2017. The appellant relies on the following rulings in support of his contentions:-
(i) Orient Enterprises, New Delhi Vs. Collector 1986(23) ELT 507 (Tribunal).
(ii) Deepak Kumar Vs. Commissioner of Customs
(ICD), New Delhi - 2017 (358) ELT 854 (T-Delhi)
(iii) Vikram Singh Dahiya Vs. CC (Export) - 2008 (223)
ELT 619 (T-Delhi)
(iv) Prasanta Sarkar Vs. CC (Prev.) - 2007 (209) ELT
220 (T-Mumbai)
18
(v) Anisur Rahaman Vs. CC (Prev.) - 2003 (160) ELT
816(T-Kolkata)
(vi) Birendra Kumar Singh Vs. CC, Lucknow - 2006
(198) ELT 460 (T-Delhi)
(vii) Narayan Das Vs. CC, Patna -2004 (178) ELT 554 (T-
Kolkata).
28. It is further urged that merely because the statement had been recorded under Section 108 of the Act, does not mean that it has to be accepted as truthful. Evidentiary value of the statement is required to be measured in conjunction with other evidences and attending circumstances. Thus, the impugned order is fit to be set aside against this appellant.
29. Assailing the impugned order, ld. Counsel for Sh. Upendra Kumar Chaubey, inter alia, urges that the Commissioner has held that this appellant was not connected in any way in the forgery of the gate pass used for attempted clearance on 28.07.2017 and have accordingly, dropped the proposed penalty under Section 114 AA of the Act. The penalty under Section 112 of the Act has been imposed relying upon the statement of the co-noticee. Although, the ld.
Commissioner allowed the prayer of this appellant for cross- examination but failed to ensure the attendance of the witnesses by exercising the jurisdiction vested in him. Further, this appellant has retracted his statement at the very first opportunity, wherein he categorically stated that his statement was recorded by the officers as dictated by them. Further, reliance was placed on the statement of Mr. Abhishek Mishra, who had stated that he attempted the removal of the goods on 28.07.2017 on the basis of the gate pass given to 19 him by Mr. Pramod Kumar as per direction of Mr. Dhananjay Kumar Singh. Thus, evidently, there is no involvement of this appellant. Further, statement of Mr. Mohit Jain, Director of M/s Sankeshwar Impex has been accepted, who in his statement stated that Mr. Abhishek Mishra was acting on the direction of Mr. Dhananjay Kumar Singh, for using the forged gate pass. It is further urged that apart from the statement of the co-noticees, there is no other cogent evidence against this appellant. Observation of the ld. Commissioner is baseless, wherein he had observed that the co-noticees, which are also the witnesses, have avoided to appear for cross-examination in mutual interest. It is a settled law that no demand or penalty can be confirmed solely on the basis of the statement of co-noticee without any corroborative evidence. The rulings stated hereinabove in the case of Dhananjay Kumar Singh are also relied upon for this appellant.
30. Assailing the impugned order, ld. Counsel for Mr. Abhishek Mishra, inter alia, urges that this appellant had bonafidely relied on the gate pass and other documents provided to him by other persons. This appellant was not having any knowledge of any forgery and discrepancy in the documents. Admittedly, this appellant had not done any forgery and/or falsification of documents. Admittedly, this appellant have not prepared nor filed any arrival manifest or import manifest or import report, nor was responsible for such documents. Thus, there is no violation of the provisions of Section 111(f) of the Act by this appellant. This appellant also came to know about the discrepancy in the gate pass when the consignment was stopped from 20 delivery on 28.07.2017. He was bonafidely performing his work with regard to delivery of the consignment on the instructions of Shri Dhananjay Kumar Singh, who had instructed him that one Mr. Pramod Kumar will come with gate pass and by showing the gate pass, delivery of the said consignment shall be allowed. There is no mens rea or forgery on the part of this appellant. Thus, no penalty is imposable on him. Further, this appellant had been doing clearance work like taking delivery etc. with regard to the import consignment, on the instructions of Shri Dhananjay Kumar Singh in the past also and thus, he had no iota of doubt that the gate pass given to him for taking delivery on 28.07.2017 was forged. Further, this appellant did not have any knowledge that Mr. Dhananjay Kumar Singh has attempted to get the goods cleared from the godown of the custodian
- Celebi without filing bill of entry. Normally, the gate pass is issued only after grant of clearance by the Customs. Further, there is no active violation of the provisions of Section 111(j) of the Act by this appellant, as he had no knowledge of the mischief being done by Shri Dhananjay Kumar Singh.
31. Ld. Counsel relies on the following rulings:-
(1) Mahendra Shah Vs. Commissioner of Customs (Import), Mumbai - 2010 (261) ELT 497 (Tribunal- Mumbai).
(2) Pankaj Babu Saini Vs. Commissioner of Customs, Ghaziabad - 2015 (316) ELT 164 (Tribunal-Delhi) (3) Anchor Logistics Vs. Commissioner of Customs
- 2013 (290) ELT 334 (Gujarat).
(4) Access World Wide Cargo Vs. Commissioner of
Customs, Bangalore -2022 (379) ELT 120
(Tribunal-Bang.)
21
(5) Kamal Sehgal Vs. Commissioner of Customs
(Appeals), New Delhi -2020(371) ELT 742
(Tribunal-Delhi)
32. Assailing the impugned order, ld. Counsel on behalf of the appellant - M/s. Krishna Logistics - CHA, inter alia, urged that this appellant is not party to any of the fraudulent act(s) done by Shri Dhananjay Kumar Singh and others. This appellant have, on proper instructions and under proper authorisation received from the Director of M/s. Shankeshwar Impex, filed the bill of entry on 30.07.2017. Whatever mischief has been done by the other appellants is in connivance with each other, this appellant is nowhere associated nor connived in any manner. Further, urges that Revenue had made bald allegations against this appellant that they did not verify the authenticity of the documents of M/s.Shankeshwar Impex received through Shri Upendra Kumar Chaubey on the directions of Shri Dhananjay Kumar Singh. Further allegation is that this appellant filed the bill of entry declaring the goods as Silver Jewellery (Assorted). Whereas in the Airway Bill received by the appellant, it was mentioned as "Jewellery without battery".
33. Ld. Counsel further urges that this appellant had filed bill of entry relying upon the documents, which appeared to be proper and was not having any idea of the forged nature of the Airway bill. Further, this appellant filed the bill of entry on first check basis and had requested for examination of the goods and the documents, etc. Thus, there is no lack of bonafide on the part of this appellant. Further, this appellant received the KYC document(s) and Registration Certificate of M/s. Shankeshwar Impex through email sent by Shri 22 Mohit Jain, Director. Thus, the allegation of filing of bill of entry without authentic documents has got no legs to stand. Further, this appellant had received Rs.25,000/- inclusive of transportation charge towards the clearance work. Thus, they have not received any abnormal amount to indicate any connivance on their part. Accordingly, he prays for allowing the appeal with consequential benefits.
34. Learned Authorised Representative for revenue relies on the findings in the impugned order.
FINDINGS:
35. Having considered the rival contentions, I find that Shri Dhananjay Kumar Singh is the kingpin in the attempted removal of valuable cargo from Customs-Custodian by resorting to forgery and other acts of omissions and commissions. It is he, who received instructions from Ms. Sonia of Hong Kong for removal of cargo from the Customs Department of India without filing bill of entry. For this work, Ms. Sonia agreed for giving remuneration @Rs.750/- per kg. or Rs.7,00,000/- approximately. Thereafter, Shri Dhananjay Kumar Singh, who was handling the clearance for Shri Mohit Jain of M/s.Shankeshwar Impex, used the IEC of M/s. Shankeshwar Impex for import of the goods. Shri Mohit Jain has allowed the use of his IEC in good faith, not knowing about the illegality or attempt to smuggle the goods by Shri Dhananjay Kumar Singh. It is Shri Dhananjay Kumar Singh, who in close association with Shri Upendra Kumar Chaubey, have attempted to get the goods delivered without filing of bill of entry, which is equivalent to smuggling. It is Shri 23 Dhananjay Kumar Singh, who has given instructions to Shri Abhishek Mishra, Shri Upendra Kumar Chaubey and others, promising them some remuneration. Further, these facts are also proved from the fact that Shri Dhananjay Kumar Singh had agreed with Ms. Sonia that in case of failure to clear, and the goods get confiscated by the Customs, he shall bear 50% of the loss. Further, Shri Dhananjay Kumar Singh had also admitted that on earlier two occasions also, he had cleared the valuable consignment by resorting to smuggling, as the earlier two consignments were cleared without filing bill of entry by resorting to forgery and delivery without actual gate pass. Accordingly, penalty imposed on Shri Dhananjay Kumar Singh of Rs.5,00,000/- under Section 112 and Rs.20,00,000/- under Section 114 AA are confirmed and his appeal is rejected.
36. So far Shri Upendra Kumar Chaubey is concerned, I find that he has actively connived in the whole episode of smuggling, morefully described hereinabove. He has knowingly used forged documents like gate pass etc. having knowledge of its forged nature. However, he is a person of small means and employee of the importer - M/s.Shankeshwar Impex. I find that penalty imposed upon him is disproportionate. Accordingly, I allow his appeal in part. I reduce the penalty of Rs.4,00,000/- under Section 112 to Rs.1,00,000/- and penalty of Rs.15,00,000/- under Section 114 AA to Rs.3,00,000/-.
37. So far Shri Abhishekh Mishra is concerned, he is H-Card Holder employed with CHA firm viz. M/s Aeroship Logicare Pvt. Ltd., being engaged in the Customs clearance work for the last few years, was aware of the basic Customs procedure. Further, he was promised 24 for Rs.10,000/- for abetting in the smuggling done by Shri Dhananjay Kumar Singh. Normally, this high amount of remuneration is not given for simple delivery of the import consignment. Thus, connivance on the part of this appellant is evident on the basis of the record. Further, I find that this appellant had not resorted to the forgery of the documents, although he had some inkling or idea about the illegality in taking of the delivery of the consignment on 28.07.2017, on the instructions of Shri Dhananjay Kumar Singh. However, I find that in the facts and circumstances, he has violated the provisions of Section 111(j) of the Customs Act. Further, I find that penalty for falsification of the documents and its use, having knowledge of false/or forged nature of the documents is not attracted. Accordingly, I confirm the penalty of Rs.1,00,000/-under Section 112 and set aside the penalty under Section 114 AA of Rs.5,00,000/-. Accordingly, the appeal is allowed in part.
38. So far the appellant, M/s. Krishna Logistics Management is concerned, I find that they have acted bonafidely as a CHA and there is no lapse on their part in taking instructions and filing the bill of entry. Further, they have filed the bill of entry on first check basis and also requested for examination of the goods and the documents before the Customs Department. Further, there is no allegation of any connivance on their part in the attempted smuggling of the imported goods on 28.07.2017. Accordingly, I allow their appeal and set aside the penalties imposed.
39. So far M/s. Celebi Delhi Cargo Terminal Management India Pvt. Ltd. are concerned, it is evident that they are not party to 25 the attempted removal by other appellants in the nature of smuggling, particularly, Shri Dhananjay Kumar Singh. However, there appears to be lack of 'internal control procedures' in their office/warehouse, and taking advantage of such loop holes in the procedures/mechanism, Shri Dhananjay Kumar Singh and others in collusion have attempted to remove the imported goods without filing bill of entry by using forged documents. Further, Shri Dhananjay Kumar Singh has been successful in removing the two consignments earlier, by resorting to smuggling in similar manner without filing bill of entry. I further find that M/s Celebi Delhi Cargo Terminal Management India Pvt. Ltd. have immediately informed the Customs of the incident, which had happened on 28.07.2017 as 29th and 30th July, 2017 were holidays in the Customs Department, and on 31.07.2017, the whole episode was brought to the knowledge of the Customs along with evidences collected by them as well as the statement of Forklift driver.
40. Accordingly, the penalty of Rs.5,00,000/- imposed under Regulation 12 (8) of the Handling of Cargo in Customs Areas Regulations, 2009 is reduced to Rs.1,00,000/-. Penalty of Rs.5,00,000/- under Section 112 of the Act is set aside. Thus, the appeal is allowed in part.
To sum-up :-
(i) Penalty imposed on Shri Dhananjay Kumar Singh (Customs Appeal No.51163 of 2020) of Rs.5,00,000/-
under Section 112 and Rs.20,00,000/- under Section 114 AA are confirmed and his appeal is rejected.
26
(ii) Appeal of Shri Upendra Kumar Chaubey in Customs Appeal No.51061 of 2020 is allowed in part and the penalty of Rs.4,00,000/- under Section 112 is reduced to Rs.1,00,000/- and penalty of Rs.15,00,000/- under Section 114 AA is reduced to Rs.3,00,000/-.
(iii) Customs Appeal No. 50121 of 2022 of Shri Abhishek Mishra is allowed in part and the penalty of Rs.1,00,000/- under Section 112 is confirmed and the penalty under Section 114 AA of Rs.5,00,000/- is set aside.
(iv) Customs Appeal No.51060 of 2020 in respect of M/s. Shri Krishna Logistics Management is allowed.
(v) In Customs Appeal No.50879 of 2020 in respect of
M/s. Celebi Delhi Cargo Terminal Management
India Pvt. Ltd., penalty of Rs.5,00,000/- imposed under Regulation 12(8) of the Handling of Cargo in Customs Areas Regulations, 2009 is reduced to Rs.1,00,000/- and penalty of Rs.5,00,000/- under Section 112 of the Act is set aside. The appeal is allowed in part.
[order pronounced on 25.01.2023] (ANIL CHOUDHARY) MEMBER (JUDICIAL) Ckp.