Custom, Excise & Service Tax Tribunal
Shri Sajal Das vs Kolkata-Admn Airport on 2 July, 2025
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No. 75126 of 2025
(Arising out of Order-in-Original No. KOL/CUS/A&A/Pr.COMMISSIONER/ADJN/16/2024
dated 22.04.2024 passed by Commissioner of Customs (Airport & ACC)
Shri Vikki Kumar,
Appraiser-Customs,
(Customs House, 15/1, Strand Road, Kolkata-700001 and
Resident of ―Eastern Tower, Flat No. 2E, 398, Ho-Chi-Minh Sarani, Sakuntala Park,
Kolkata-700061)
Appellant
VERSUS
Commr. of Customs (Airport & ACC), Kolkata
(Customs House, 15/1, Strand Road, Kolkata-700001)
Respondent
With
(1) Customs Appeal No. 75127 of 2025 (Shri Pranabananda
Bala Vs. Commr. of Customs (Admin & Airport), Kolkata (2)
Customs Appeal No. 75128 of 2025 (Shri Navneet Kumar Vs.
Commr. of Customs (Admin & Airport), Kolkata (3) Customs
Appeal No. 75381 of 2025 (Shri Sajal Das Vs. Commr. of
Customs (Admin & Airport), Kolkata
SI No. (1)-(3) (Arising out of Order-in-Original No.
KOL/CUS/A&A/Pr.COMMISSIONER/ADJN/16/2024 dated 22.04.2024 passed by
Commissioner of Customs (Airport & ACC)
APPEARANCE :
Shri H. K. Pandey, Rajnish Kr. Kalawatia, Ms. Muskan Sharma, Dr. S. K.
Mohapatra, All Advocates for the Appellant
Shri Faiz Ahmed and Shri S. K. Jha, both Authorized Representative for the
Respondent
CORAM:
HON'BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL)
HON'BLE MR. RAJEEV TANDON, MEMBER (TECHNICAL)
FINAL ORDER NO.76663-76666/2025
Date of Hearing : 13th March 2025
Date of Pronouncement : 02.07.2025
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
Per Rajeev Tandon
Out of the four appellants herein, three are officers of the
Department namely, Shri Navneet Kumar, Deputy Commissioner
(Customs), Shri Vikki Kumar, Appraiser, Pranabananda Bala, Examiner
who have filed the present appeal. The fourth appeal arising out of the
Order-in-Original No. KOL/CUS/A&A/Pr. COMMISSIONER/ADJN/16/2024
dated 22.04.2024 has been filed by one Sajal Das, who as per Revenue,
is one of the prime accused in the matter.
2. The present case is borne out of a specific information that certain
courier firms were engaged in import of a variety of contraband goods
by mis-declaring them as household goods and goods of daily
necessities. The said shipments said to have originated from
Dubai/Hong Kong and imported through Air Cargo Complex, Kolkata
were interdicted. Acting on the said information, the officers of the DRI,
Kolkata Zonal Unit, examined three courier consignments and sixteen
general import consignments during the period 05.06.17 to 01.08.17.
The imported goods were found to be grossly mis-declared in terms of
description, quantity, brand description, value, etc. The courier imports
declared as gift items and personal effects (which are exempt from
payment of duty) were however found to be Cigarettes, Protein
supplements, Steroids, Hormone supplements, etc. imported in
large/commercial quantities. The general import cargo was declared as
low value items like footwear, stickers for garments, mobile accessories,
unbranded shoes, mobile phones in SKD condition, branded mobile
phones, watches, cameras, pen drives, memory cards, etc. in the Bill of
Entry, while in effect were declared as mobile phones/mobile phone
parts or accessories (number/kg), in the country of export.
3. The DRI authorities therefore seized the said 19 consignments
estimated to be worth around Rs. 195 Crore and such seizures were
affected at various places including Delhi and Noida. The seized goods
were imported from Dubai and Hong Kong. The Revenue therefore
suspected a massive scale of smuggling activity. In the chain of events,
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
one of the consignment imported by M/s Yash International, a
proprietorship firm of Shri Sonu Kabira was also intercepted on
05.06.2017. The said goods imported were also found to be grossly
mis-declared. As per the Bill of Entry the declared assessable value was
Rs.4,61,871.90/- whereas the ascertained assessable value was found
to be 3,94,97,020/- i.e. nearly ten times more than what was
mentioned in the import documents.
4. Pursuing the investigations further, the departmental authorities
called for details of previous imports in the name of the said firm M/s
Yash International and found a total of twenty one such shipments
effected through Air Cargo Complex, Kolkata as detailed in Para 3 of the
Order-in-Original. In keeping with the modus, it is ascertained from the
Table therein that the item description indicated at the time of import in
the Bill of Entry was like Heating Nozzle, Footwear, Tempro Glass, Key
Ring with MP3 Remote, Empty Box made of Plastic, Playing Cards,
Artificial Nails, PCB For CCTV Camera, Cable for CCTV, , Video Door
Phone, Car Rear View Mirror, Tempered Glass for Mobile Phone,
Earphone for Mobile Phone, Back cover for mobile phone, Bluetooth for
Mobile Phone, Men Walking Shoe, Ladies Top small size, HID Bulb for
car, etc. to indicate general declaration of low value goods. It was also
ascertained during the investigations that declared address of Sonu
Kabira, Proprietor of Yash International was incorrect and fictitious. The
investigators could not lay their hands on Sonu Kabira. Investigations
were also undertaken at the end of Customs Brokers concerned in the
matter. Since no appeal has been filed by them, their role at this
juncture is not being spelt out/discussed.
5. During the course of investigations the names of three
Departmental officers and appellants herein (as stated in para 1),
surfaced as being involved and enabling the clearance of mis-declared
consignments. Multiple statements of each of the three officers were
recorded, with regard to their role in the matter. The gist of the
statements as tendered by the accused officers and flows from records
is as under:-
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"8.1 Statement of Shri Vikki Kumar, Shed Appraiser of Customs posted at ACC,
Kolkata, who was reported to have examined the consignment of M/s Yash International
seized by DRI, was recorded on 06.06.2017 under Section 108 of the Customs Act, 1962
wherein Shri Vikki stated inter alia that;
a) From 18.06.2016 to 30.09.2016 he worked as Examiner at ACC Kolkata, after which he
was working as appraiser at ACC Kolkata.
b) He was looking after assessment related work in Bills of Entry in import shed.
c) As per prevalent practice followed at ACC Kolkata, in the case of RMS (Risk
Management System) Bill of Entry, CHA used to submit Bill of Entry to the Examining
Officer who would check the MAWB (Master Airway Bill) and HAWB (House Airway Bill) of
the concerned Bill of Entry, that if MAWB and HAWB Nos. were found in order, the Bill of
Entry was presented before the shed who used to check the classification and correctness
of notification benefit; that if all the above parameters were found in order, Out of Charge
was given in the system; that in respect of group assessed Bill of Entry, the order given by
the group was followed and after finding the goods as per description, Out of Charge was
given in the system only after submission of reports by the examining officer in the system.
d) In some instances where mis-declarations were found, the Bill of Entry was returned
back to Group with remarks.
(e) In respect of Bill of Entry No. 9940859 dated 02.06.2017 of M/s Yash International,
Shri Navneet Kumar, DC Inspection shed, had given order for manual OOC (Out of
Charge) on the hard copy of the Bill of Entry and as per DC's order, the goods of the said
Bill of Entry were examined by EO Pranabananda Bala: that due to work pressure, he was
not present at the time of examination, that having good faith on his EO, he had not raised
any query regarding examination and manual out of charge for the said Bill of Entry was
given by him.
(f) DC Shri Navneet Kumar had given manual out of charge order on the hard copy of
another BE No. 9941310 dated 02.06.2017 which was also subsequently examined by DRI
and on DRI's examination substantial quantity of Cigarettes were found; that as per DC's
order this consignment was also examined by Examiner Pranabananda Bala; that
however, due to work pressure he was not also able to examine the goods and after
seeing DC's order, manual out of charge was given by him.
(g) Regarding manual out of charge, for any Bill of Entry, he only looked after the
order of the Deputy Commissioner (Import shed), that he had no idea whether the
Commissioner had given any order for manual out of charge for the said Bills of Entry
which was a mandatory requirement.
h) A register for manual out of charge was kept in the Import shed and there were so
many Bills of Entry mentioned in the register; that on the previous day, manual out of
charge was given for 10 Bills of Entry and within 3-4 days, all these Bills of Entry would be
updated in the EDI system.
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
i) In the last 2 days, manual out of charge was given by him in respect of 4 Bills of Entry
handled by the Customs Broker, M/s Sadguru Forwarders Pvt. Ltd. with the permission of
DC Import shed.
j) He did not know the main person of Sadguru Forwarders Pvt. Ltd.; that one Nasir used to
represent the Customs Broking firm.
8.2. Statement of Shri Pranabananda Bala, EO Customs dated 06.06.2017: Statement
of Shri Pranabananda Bala, Examining Officer of Customs posted at ACC. Kolkata, who
reported to have examined the consignment was recorded on 06.06.2017 under Section
108 of the Customs Act, 1962 wherein Shri Bala inter alias stated that,
a) From March 2016 to Feb 2017 he had been attached to ACC Appraising Unit, ACC
Kolkata and since Feb 2017 he had been working in ACC Import shed as EO.
b) As per allocation, his duty was to examine goods which were presented to him and to
report to shed for OOC (Out of Charge).
c) As the prevalent procedure, in the case of RMS (Risk Management System) Bill of
Entry, CHA (Custom House Agent) used to submit Bills of Entry to him, that he would
check the MAWB (Master Airway Bill) and HAWB (House Airway Bill number of the said
Bill of Entry with the goods and also would check the required documents i.e. invoice,
packing list, Airway Bill, DISA Certificate and other certificates, that regarding the group
assessed Bills of Entry, he would examine the consignment as per the order of group along
with shed and he would give examination report to shed for sending it to group.
d) In respect of BE No. 9940859 dated 02.06.2017 pertaining to M/s Yash
International, the DC, Inspection shed had given order for manual OOC (Out of Charge) on
the hard copy of the BE for reasons best known to him (DC) and after the CHA presented
the hard copy of the BE, he along with the shed physically examined the consignments.
e) As per manual out of charge order issued by Shri Navneet Kumar, DC Import shed on
the hard copy of another BE No. 9941310 dated 02.06.2017, the consignment which was
detained by DRI, the goods were examined by him: that however, he did not check the
ICES system if the BE was on his screen or not, that after examination he sent it to shed.
f) In respect of the consignment under BE No. 9941310 dated 02.06.2017, he had only
examined the cartons which were presented to him by the CHA (representative of the
Customs Broker) as per the direction of DC Import shed and the cartons were found to
contain goods as per declaration. He could not detect the mis-declared goods in other
cartons which were found on DRI's examination; shed appraiser Vikki Kumar also had
knowledge about the direction of DC Import shed.
g) He followed the order of DC import shed regarding manual order of out of charge; that
he was not aware as to why DC Import shed gave such manual out of charge order, that
he did not know whether any permission for manual out of charge was given by the
Commissioner of Custome or not.
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h) There were other instances in the past that manual out of charge was given in respect
of the consignments of the same Customs Broker which were recorded in a register by
Import shed and used to enter examination report later.
8.3. Further statement of said Shri Vikki Kumar, Shed Appraiser of Customs, was recorded on
07.06.2017 under Section 108 of the Customs Act, 1962 wherein Shri Vikki stated inter alia that;
a) It was his duty to examine the consignment imported under Bill of Entry No. 9940859 dated
02.06.2017; that however he had not carried out his duty in proper way;
b) In the past one courier Bill of Entry he had Noticed mis-declaration and it was discussed with his
Deputy Commissioner and after his verbal approval the consignment was cleared and other
consignment was also checked by SIB but he had no idea what action was taken regarding that
consignment; that however, he had found some protein supplement in the consignment.
8.4. Further statement of said Shri Pranabananda Bala, Examiner of Customs was
recorded on 07.06.2017 under Section 108 of the Customs Art, 1962 wherein Shri Vikki stated inter
alia that;
a) As per direction of DC Import shed, the CHA (representative of the Customs Broker)
placed 5 Packages, out of 139 Packages imported under Bill of Entry Na 9940859 dated
02.05.2017 pertaining to M/s Yash International, which were found to contain the declared
items namely "Sticker for Garments" that however, he was supposed to examine 5% i.e.
seven packages; that he had given examination report of 7 packages on the hard copy of
the Bill of Entry without physically examining 7 Packages.
b) Shri Vikki Kumar mis-stated on 06.06.2017, as he was present during examination of the
consignment imported by M/s Yash International under Bill of Entry No. 9940859 dated
02.06.2017.
c) In respect of all the consignments handled by the Customs Broker. M/s Sadguru
Forwarders Pvt. Ltd cleared in recent past, they were ordered for manual out of charge by
DC Import shed, irrespective of whether EDI system was working or was out of order.
8.5. By DRI, Kolkata letter dated 07.06.2017, summons under Section 108 of the Customs Act,
1962 issued to Shri Navneet Kumar, Deputy Commissioner of Customs, ACC Kolkata for his
appearance before DRI Kolkata on 08.06.2017 was forwarded to the Commissioner of Customs
(Airport & Air Cargo Complex Commissionerate) with the request to serve it upon said Shri
Navneet Kumar
8.6. Shri Navneet Kumar, Deputy Commissioner was examined under Section 108 of the
Customs Act, 1962 on 08.06.2017 and his statement was recorded. He denied giving any order for
manual out of charge for any consignment, except two consignments of Haldia Petrochemicals
where approval of Commissioner was taken. He however admitted that manual out of charge for
EDI Bills of Entry was common. He stated that Shed Appraiser Vikki Kumar and E.O.
Pranabananda Bala had lied in saying that he had ordered for manual out of charge. He also
denied the allegation that he had specifically instructed them about the specific packages to be
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
examined by them. Shri Navneet Kumar also disowned the orders for manual release and the
signatures appearing on the hard copies of the Bill of Entry No. 9940859 dated 02.06.2017, the Bill
of Entry related to seized consignment of M/s Yash International and on the other two Bills of Entry
No. 9941310 dated 02.06.2017 and 9947893 dated 03.06.2017 related to the consignments under
DRI's investigation.
8.7. The residence of Shri Navneet Kumar, Deputy Commissioner was searched on 10-06-2017
and some incriminating documents and articles were recovered which include four pages print-outs
marked as "Wish Sales 59 Ctn" and "Whish Sales 117 Ctn", in which package nos. with mark,
items and weight were mentioned and against some packages "TO OPEN FOR INNSPECTION"
was mentioned. These four pages printouts indicate that only the specified packages should be
opened during examination by Customs at ACC Kolkata. As mentioned earlier, Md. Nasir Uddin
had identified these documents and also stated in his statement dated 10.06.2017 that these
inspection instruction of M/s Wish Sales Corporation of Delhi were sent to his e-mail by said
Monika Vora and after he took out the print copies he handed over it to Navneet Kumar.
8.12 Statement of Shri Vikki Kumar, Shed Appraiser was further recorded on 13.06.2017 under
Section 108 of the Customs Act, 1962 and he was confronted with the statement dated 08.06.2017
of Shri Navneet Kumar, DC wherein he (Navneet Kumar) denied of giving manual release order on
any Bill of Entry. In his statement dated 13.06.2017 Shri Vikki Kumar stated, inter alia, that;
a) Shri Navneet Kumar had given manual release order on the first page of the hard copy of
the Bill of Entry No. 9940859 dated 02.06.2017 pertaining to M/s Yash international and
9441310 dated 03.06.2017 and the Bills of Entry were presented by the CHA to the shed
officers, that accordingly. goods were examined and manual examination report was given;
that after that he had given manual out of charge, that he had never given any manual out
of charge for any Bill of Entry without the permission of DC in his posting as shed in import
charges;
b) On seeing the hard copies of the Bill of Entry No. 9940859 dated 02.06.2017, 9441310
dated 03.06.2017 and 9947893 dated 03.06.2017 he identified the "Manual Release‖ order
of DC Navneet Kumar with his (Navneet Kumar) short signature which was at bottom right
corner on the first page of each Bills of Entry No. 9940859 dated 02.06.2017, 9441310
dated 03.06.2017 and 9947893 dated 03.06.2017.
c) Once in the past, he had given an information about mis-declaration in one courier
consignment to DC Shri Navneet Kumar in presence of his EO; that however, the DC had
instructed to clear the goods as mis-declaration was not found very big.
8.13. Statement of Shri Pranabananda Bala, EO was recorded on 13.06.2017 under Section 108
of the Customs Act, 1962 and he was confronted with the statement dated 08.06.2017 of Shri
Navneet Kumar, DC wherein he (Navneet Kumar) denied of giving manual release order on any Bill
of Entry. In his statement dated 13.06.2017 Shri Pranabananda Bala, inter-alia, stated that;
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
a) Shri Navneet Kumar had lied stating that he (Navneet Kumar) had not given manual out of
charge order on the hard copy of the Bills of Entry No. 9940859 dated 02.06.2017
(pertaining to M/s Yash International) and 9441310 dated 02.06.2017;
b) Shri Navneet Kumar had given written direction on the hard copies of the Bills of Entry and
on the basis of said written direction, he had submitted manual examination report after
examination of goods;
d) On seeing the hard copies of the Bill of Entry No. 9940859 dated 02.06.2017, 9441310
dated 02.06.2017 and 9947893 dated 03.06 2017 he identified the "Manual Release‖ order
of DC Navneet Kumar with his (Navneet Kumar) short signature which was at bottom right
hand side on the first page of each Bills of Entry No. 9940859 dated 02.06.2017, 9441310
dated 02.06.2017 and 9947893 dated 03.06.2017.
e) Shri Navneet Kumar used to call him in his chamber and give him instruction only to open
those packages which would be presented by the CHA;
f) He examined most of the consignments cleared by Sadguru Forwarders Pvt. Ltd as per
direction and instruction of DC Import shed;
g) On 05.06.2017 Shri Vikki Kumar was not with him when he received instruction from DC in
his (DC) chamber; that however on previous occasion Vikki Kumar used to accompany him
to DC's chamber and received same instruction.‖
6. To pursue the investigations further, opinion of an handwriting
expert was also obtained by the authorities in respect of three Bills of
entry dated 02/06/2017 and 03/06/2017 whereupon the handwriting
expert indicated prima facie similarities between the handwriting on the
Bill of Entry (manual release order) with that of the handwriting of Sri
Navneet Kumar. Subsequently for confirmation, the necessary
documents were tendered to the Director, Kolkata Institute of
Graphology and confirmation about the signatures of Navneet Kumar
was received by the authorities. In order to confront Navneet Kumar,
Deputy Commissioner with the subsequent statements tendered by Shri
Pranabananda Bala, Examining Officer, Shri Vikki Kumar, Shed
Appraiser as well as that of Shri Vishal Kumar, Appraiser, SIIB and as
also to carry out forensic examination of the seized mobile phones
recovered, the Deputy Commissioner was summoned who chose to
remain absent but appeared later before the DRI authorities on 21st
June 2017 and 23rd June 2017. In response to the summons issued, the
Deputy Commissioner however denied all charges, passing the blame
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
on to subordinate officers. He held them responsible, for the gross
irregularities in clearance of mis-declared goods.
7. The department carried out detailed investigations with reference
to manual out of charge given in the subject matter and recorded
statements of various persons, including both Vikki Kumar and
Pranabanand Bala. Based on the investigations conducted by DRI, the
Disciplinary Authority subsequently suspended both the above named
departmental officers alongwith Navneet Kumar, Deputy Commissioner.
8. Call Data Records for the mobiles numbers used by Navneet
Kumar, Deputy Commissioner, Pranabanada Bala, EO, Vikki Kumar,
Shed Appraiser along with other co-accused were also obtained for the
previous six months from the date of the incident, which point out that
the above named officers were in regular touch with some of the other
co-accused, Nasiruddin, Aloke Ghosh, Sajal Das, Mayur Mehta, Monika,
Santosh and other persons of the syndicate. Table-2 extracted from the
case records, herein below indicates the number of times telephonic
calls were exchanged between the various members of the syndicate or
with the Deputy Commissioner, Navneet Kumar:-
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9. It is on the strength of this mobile call data summary, that the
department has pointed out that Deputy Commissioner, Navneet Kumar
though having denied any knowledge of the case, was in regular touch
and had spoken to Nasir Uddin on innumerable occasions. The role of
Nasir Uddin as brought out in the investigations is dealt with in para No.
21.2 of the notice.
21.2 Role of Md. Nasir Uddin: -
Investigation has revealed that Nasir Uddin was the key player in respect of the
large-scale smuggling through Kolkata Airport, particularly for the purpose of
facilitating such illegally imported mis-declared goods. He carried out the directions
of Shri Navneet Kumar, the then Deputy Commissioner of Customs, ACC Kolkata
and he allowed himself to be used by DC Navneet Kumar against monetary
considerations. He had arranged the Customs Broker and acted as a
representative of the said Customs Broker without even having a valid licence to
do so. He was receiving the instructions for opening and examination of specific
packages which were containing only the declared goods, in his e-mail account
and was acting as a conduit for receiving and executing such directions. As per
direction of his handlers he would present selected packages for examination
before the officers so that the mis-declared items do not get detected at the time of
examination, and lastly he had also arranged for quick clearance of the goods and
delivery of the same as per directions of his handiers with full and conscious
knowledge that the goods being Imported were all grossly mis-declared and some
of the consignments contained contraband goods like cigarettes which are
prohibited for use in India as those do not bear the statutory warnings. As in the
case of the seized consignment, he had also executed his jobs in similar manner
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
on behalf of the smuggling syndicate in respect of clearance of all the past
consignment of the subject Importer. Nasir Uddin was knowingly involved in such
gross mis-declaration, knowing fully well that the goods were mis declared and
are, therefore, liable to confiscation under the Customs Act, 1962. It further
appears that Md. Nasir Uddin knowingly or
10. However, to appreciate the case in its entirety, it would be
appropriate to place on record the gist of the investigations of the case.
Show Cause Notice para 15.1 to 15.7 are therefore extracted herein
below and need to be gone through.
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11. Interestingly, it may also be of importance, to place on record,
the extent of co-operation/non co-operation, by the two key accused
Aloke Ghosh and Nasiruddin, who in response to summons issued for
recording statements u/s 108 of the Customs Act, demanded its
withdrawal on the plea that DRI could not investigate the matter, as
CBI was already seized of the case and investigating the matter.
12. As can be noticed from the call data records, the appellant Deputy
Commissioner, Navneet Kumar was in direct touch with both Nasir
Uddin & Shri Mayur Mehta, who as brought out in the investigations
played a key role in the smuggling racket. As can be seen from Table 2
extracted in Para 8 above, there is an over five dozen times exchange
of telephonic conversation between Navneet Kumar and Nasiruddin in
the three months of April-June 2017, while with Mayur Mehta, such
exchange between Feb-Apr 2017 is however less but still significant. It
is therefore, the case of the department that these finding corroborate
the veracity of the statement of Mayur Mehta that the Deputy
Commissioner, Navneet Kumar was instrumental in facilitating the
imports of the mis-declared consignment. The Revenue has also alleged
that the Deputy Commissioner has not only facilitated the speedy
clearance of mis-declared consignment but also suppressed the truth
and tried to mislead the investigations. Call Data Records also confirm
exchange of telephonic communication (several hundred times),
between Nasir Uddin with Pramanand Bala, Examiner and Shri Vikki
Kumar, Shed Appraiser both posted at the material time at Air Cargo
Complex, and the other co-accused.
13. It has been brought out in the investigations that almost the
entire cargo was imported by Nasir Uddin under the licence of M/s
Sadguru Forwarders Pvt. Ltd. While the noticees may continue to deny
or underplay their roles in the matter, the call data records (CDR)
however confirm that the key players, have all been in touch with Ms.
Monika, Nasir Uddin and the above named officers. The Revenue has
also strongly alleged that like Navneet Kumar, Mayur Mehta who was
instrumental in suppressing the truth also misled the investigations.
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
14 The role of Sajal Das, the lone non-departmental person, in the
bunch of present appeals is detailed in paragraph 21.8 of the impugned
SCN, alleging that he was one amongst the key persons of the
syndicate involved in the illicit import and smuggling of the said goods.
It is stated on record that Sajal Das, despite himself being a partner of
the Customs Broking firm, did not associate his firm, being fully aware
of the consequences of such a reprehensible act, if caught. It is also
stated in the notice that the two appellants, Sajal Das as well as
Navneet Kumar were instrumental in the location and identification of
the other co-accused Naseer Uddin who undertook to carry out the dirty
work and handle the clearance job of misdeclared consignments.
Nonetheless, records show that Naseer Uddin was allowed to utilize the
office machinery of Sajal Das's office to transmit/receive e-mail
communications with importers particularly Mayur Mehta as well as
Swati Vora alias Monica Vora. Even the bank statement revealed that
Sajal Das's firm-Nirmala Bala Trading, were remitted an amount of Rs.
5 lakh by one Pacific Enterprises. It is for these reasons, apart from
preparing forged & false papers for the importer Yash International that
the Sajal Das amongst others was found culpable of offence punishable
under Sections 112 (a), 112(b) and 114AA of the Customs Act.
15. Investigations and enquires as were conducted by DRI with
Consulate General of India, Hong Kong, revealed details of import in
respect of 17 out of 21 consignments imported by M/s Yash
International. The particulars of the said 17 consignments as found in
the Trade Declaration System in Hong Kong, SAR and as communicated
by the Consulate General of India, Hong Kong are as under:-
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16. Based on the comparison of the details of declaration as received
from the Consulate General of India vis-à-vis the import documents
filed at Air Cargo Complex, Kolkata, a major mismatch with respect to
both description and value of the imported goods is clearly discernible.
The following table illustrates the value of the impugned goods declared
before Hong Kong Customs vis-à-vis Indian Customs, in the seventeen
of the twentyone such cases.
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17. Thus as can be noted, the description mobile phone, mobile phone
parts or mobile phone accessories at the port of shipment were found to
be mis-declared at the time of import upon arrival i.e. at ACC Kolkata.
This comparison therefore brings out the gravity of the charge of a
major mis-declaration, allowed to go scot-free, in the previous
consignments as well. In general, the extent of under valuation resorted
to is to the tune of 3 to 17 times of the actual value of the
consignments. It may also be pointed out at this juncture that 7of the
17 such consignments viz serial No. 10 to 14, 16 & 17 were cleared by
Risk Management System (RMS) where no assessment and no
examination orders were prescribed, while the remaining 10
consignments were examined and cleared, each time only by the above
named set of officers upon whom the DRI levelled the connivance
charge, based on the notings of the hard copy of Bill of Entry No.
9940859 dated 02.06.2017 filed by M/s Yash International pertaining to
one of the said consignments as was seized.
18. The Deputy Commissioner Shri Navneet Kumar had given written
orders for manual release. It is the submission of the Revenue that such
21
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
trusted officers, Navneet Kumar, Vikky Kumar and P. V. Bala would give
the out of Charge(OOC) in the EDI system, well past physical delivery of
the goods. The fact of giving manual out of charge as per written
directions of Navneet Kumar has been admitted by both Vikki Kumar
and Pranabananda Bala. It is therefore the findings of the investigating
authority that in respect of seven previously cleared consignments of
M/s Yash International, manual OOC was given by the said officers and
subsequently regularized in the EDI system. Though it is a fact that the
Revenue could not lay its hands on the hard copies of the Bills of Entry,
yet time stamps by way of digital footprints and its comparison with
gate passes issued by the Air Port Authority of India (AAI), clearly
establish the sinister design as the timing of issuance of the gate pass
by AAI for delivery of the goods is much earlier to the timing of actual
OOC (Out of Charge) recorded in the EDI system. The following table as
reproduced from the show cause notice is a foolproof statement of the
aforesaid.
22
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
19. It is also brought out during the investigations that even in the
RMS Bills of Entry, where assessment and examination was not
prescribed, OOC was initially given manually and later fed into the EDI
System much after actual delivery of the goods. All this is apparently
done with malafide intents to have the goods cleared out of customs
area in the quickest time, even while they were reflective in the EDI
system as lying within customs area. The Deputy Commissioner in
charge, Shri Navneet Kumar gave manual Out of Charge orders and
accordingly, the Airport Authority of India issued gate passes and
delivered the consignments on the basis of such manual OOC. The
officers then regularized the manual OOC by making OOC entry in the
EDI system. This action on the part of the officer, is certainly not as
simple as may appear to be on the face of it. It indeed is a well thought
out machination clearly driven by mensrea and a design to outsmart
systems and procedures. It is like the proverbial the snake gets killed
without the stick breaking. This course of action by Navneet Kumar is
also corroborated by independent testimony of Vikky Kumar and
Pranabananda Bala, that in certain cases manual OOC was given on the
strength of orders issued by Navneet Kumar and which were later
regularized in the EDI system. The time chart as indicated in the above
Table proves the said fact.
20. From the course of investigations conducted into the matter, it is
evident that a well thought out conspiracy was hatched by certain
elements, fictitious firms were carved out with the knowledge,
connivance and assistance of the above named Departmental officers.
The appellant Deputy Commissioner, the appellant Appraising Officer
and the appellant Shed Examiner all acting in cahoots, for carrying out
illegal import/smuggling of goods in the guise of courier consignments
as well as general cargo imports by grossly mis-declaring them both in
terms of description and value of the goods imported. It may also be
noted that some of the misdeclared goods would even fall in the
restricted category, requiring a licence or satisfaction of other legal
requirements to effect their import.
23
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
21. Thus unscrupulous importers/traders and their agents, brokers
and middlemen were all in active collusion with the three named
Customs Officers in hatching and executing the said nefarious plot.
Investigations have even revealed that the IECs of certain importing
firms were also fictitious. All this point to a well calliberated/crafted
strategy so as to not leave any trace behind. Clearance of such goods
was arranged in connivance with the officers at ACC, Kolkata. The
licence of Customs Broker M/s Sadguru Forwarders Pvt. Ltd. was
allowed to be misused for fraudulent activities for a monetary
consideration. Definite instructions were given to Md. Nasir Uddin (key
person/mastermind) about the packages/cartons to be got opened
during examination. The department has alleged that such activity was
undertaken for monetary considerations of which the three appellant
departmental officers were also beneficiaries. For speedy clearance of
such consignments and to avoid detection and interception by the
preventive agencies/anti smuggling wing, such mis-declared
consignments were allowed to be cleared by issuance of a manual out
of charge (OOC) order in terms of the directions of the Deputy
Commissioner, Shri Navneet Kumar and later on requisite regular
procedural formalities were completed, i.e. the goods were allowed to
exit the customs stores without anybody being able to lay their hands
thereon.
22. It is brought out on record that though Navneet Kumar denied
his signatures, however when sent for forensic verification/confirmation
to handwriting expert at Kolkata Institute of Graphology, they were
found to be matching with the copy of the said report dated
28.06.2017. All this also formed part of the Show Cause Notice as a
relied upon document (RUD).
23. The Learned Advocate has submitted before us that the appellants
have been denied natural justice by the lower authority in the matter.
In defence of his clients, the ld. Advocate submits that the DRI has
implicated the above named three officers without any evidence to
substantiate its charge of the three departmental officers acting in
24
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
collusion with the abominable elements concerned with mis-declaration,
under valuation and illegal import of the goods. Post hearing of the
matter, the two sides were directed to submit written notes. The said
written notes in case of Navneet Kumar, Pranabananda Bala and Vikky
Kumar were since received and taken on record.
24. The Learned AR for Revenue has also submitted his written notes
on 15th April 2025 in the matter.
25. The Learned Advocate for the appellants have submitted that
allegations against their clients are basically a cut & copy job. He
submitted that the allegations pertaining to the live consignment
interdicted was not part of the instant proceedings and hence tried to
distinguish the matter by saying that the Show Cause Notice pertains to
only one live consignment of M/s. Yash International that has been
relied upon without the RUDs. He further submitted that the allegations
made with reference to the live consignment have been assumingly
latched on to the past import consignments and this has been done
without corroboration and any substantive evidence. It may be pointed
out here itself that we find reference to the live consignment, as only by
way of narration of the sequence of events leading to the present
matter and no more. We therefore do not find sufficient force in this
argument of the Learned Counsel. The basis of the charge in respect of
the past consignment is by way of a report received from the Director
General of Hong Kong (Customs). It is also not the appellants case that
the said report of Hong Kong Customs, was not made over to them. The
declarations tendered both before overseas Customs officers and/or at
Kolkata are a matter of record and open for everyone to take note of
the variations within the two set of declarations. As are clearly
discernible on the face of it the variations are obvious and quite glaring.
The importer has certified and signed as to the accuracy and
truthfulness of the import declaration. This argument of the Learned
Advocate therefore is unsustainable and dismissed at outset only. We
are also not in agreement with the submissions of the Learned Advocate
that no corroborative evidence was gathered during investigations and
25
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
no specific role of the appellants could be ascertained. In fact the role
played as narrated in paras above clearly brings out the active
involvement of the appellants. It has been amply demonstrated that the
orders for manual clearances were initiated at the behest of the Deputy
Commissioner, even though Navneet Kumar may have denied so. The
examination was conducted only in respect of the consignments/boxes
as specifically pointed out and particularly identified and communicated
to the officers including and by the Deputy Commissioner. The out of
charge was given manually, clearances speeded up to prevent detection
by Counter Intelligence Agencies. The specific evidence by way of call
data record and the innumerable times the contact is established with
other prime accused (also co-accused), is the clinching and defining
piece of evidence, nailing the entire trail of the menacing manipulation
in the matter. All this clearly reveals a deep seated nexus in effecting
irregular and improper imports. Moreover, the handwriting expert has
also accorded his confirmation in the matter leaving no room for a
doubt.
26. The Learned Advocate has further pointed out that in respect of
three courier consignments and Bills of Entry No. 330331 to 330331a,
Bills 330382 and 3300330 dated 05/06/2017, the status thereof was at
the noting stage and therefore, there was no basis to levy charge in
respect of such documents as the said officers had no role to play at
that point in time. We would like to mention that, be as it may, the
modus adopted by the appellant is quick paced, leaving hardly any
space, in time dimension, between noting, assessment and final exit of
the imported goods from the customs precincts, as all system related
entries are but obfuscated, morphed and camouflaged with in temporal
and spatial sense, by routing through the manual route and only
updated in the EDI system as a post script and not on a real time basis.
It also appears that the Bill of Entry No. indicated as 3300330 is not
correct.
27. The Learned Advocate for the three Revenue Officers, further
submits that in respect of the said three Bills of Entry as well as 16
26
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
General Import consignments neither checklist nor any Bills of Entry
had been filed as on 5th June 2017, while Bill of Entry was filed only in
respect of eight such consignments by the importer/CHA and in respect
of five such consignments only check list had been filed, whereas for
the remaining three, even no check list have been filed. He further
submits that the Deputy Commissioner had raised queries in five of
such consignments in respect of Bill of Entry No. 9941310, 9940859,
9959888, 9959053 and 9959909 and these documents were pending at
the examination stage and therefore no examination report had been
furnished by the said Examiner in the EDI system for giving out of
charge by the said Appraiser. As a quick rebut of the aforesaid, it may
be pointed out that it is evidently brought on record that the goods
were cleared for home consumption and subsequently out of charge
were uploaded in the system. The defences' plea therefore that the Bills
of Entry were waiting at different stages of assessment/examination
that the said examination feedback not having been furnished, would
not hold any significance under the circumstances. Given the modus,
who for all would know that for once the goods would have actually
exited the customs area, while the EDI System indicated them to be
lying unassessed/unexamined as the requisite formalities in the EDI
system and reports were not entered.
28. Amongst other arguments raised, the appellants have also
submitted that the show cause notice in the first place was in itself not
maintainable, as it was issued under Section 28 (4) of the Customs Act.
It is an outcome of the investigations undertaken that have established
that there has been sizeable revenue loss to the government by the act
of misdeclaration of goods in quantity, nomenclature and value thereof.
The Revenue has issued the SCN as ―issued under Section 28 (4) read
with Section 124 of the Customs Act, 1962‖. We do not therefore find
any substance in this plea raised by the appellants.
29. Further as for the three appellant Revenue officers raising a
question with regard to issuance of the SCN in terms of Section 28 (4)
of the Customs Act, suffice to state that the importing firm namely M/s.
27
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
Yash International in active connivance with other co-noticees had
entered into a conspiratorial arrangement to illegally import and clear
mis-declared high value consignments for home consumption, thereby
evading substantial amount of Customs duty. They have been alleged to
willfully suppress the fact of these consignments being mis-declared in
respect of their description, numbers as well as value. They have also
been alleged to connive to subvert the assessment and examination
processes and giving belated OOC in the EDI system to further their
malafide intents and actions. Accordingly, the instant SCN was issued
demanding the differential duty amount of Rs. 77, 34, 435/- (Rupees
seventy-seven lakh thirty-four thousand four hundred and thirty-five)
under Section 28(4) of the Customs Act, 1962 along with applicable
interest under Section 28AA of the Customs Act, 1962. It is observed
that only the departmental Customs officers, who are co-noticees in the
instant case have raised arguments in respect of Sec. 28(4) of the
Customs Act, 1962, wherein their stance is that a notice under Section
28(4) of the Act ibid can be issued to a person who is chargeable with
duty, who can be the importer or the exporter or the agent or employee
of the importer or exporter. The aforesaid co-noticees have also
vehemently opposed the invocation of Section 124 of the Customs Act,
1962, as they argued that it can legally be issued to a person who is the
owner of the goods in question or from whose possession goods have
been seized. They have thus argued that being neither
importer/exporter or agent/employee of the importer/exporter they
cannot be the person chargeable with duty as they were not the
beneficial owners of the goods in question nor were the goods
recovered from their possession. It be noted that a notice under Section
124 of the Customs Act can be issued to any person, who is related to
goods, does or omit to do any act /or abets the doing or omission of
such an act that would render the such goods liable to confiscation
under Section 111 of the Act ibid. It is observed that the co noticees
have failed to understand the real expanse of Section 124 of the Act.
Principles of natural justice of ―audi alteram partem" prescribe that no
one shall be condemned unheard i.e. it is mandatory for the
adjudicating authorities to follow the principles of natural justice both in
28
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
letter and spirit. Further, Section 28(4) is invoked for recovery of duty
from the importer or the exporter or the agent or employee of the
same, which in the instant case is invoked for demand of duty from the
importer viz. M/s. Yash International.
30. It is a fact that the main noticee i.e. Yash International has
neither replied to the notice nor appeared for Personal Hearing to
defend its case before the lower authorities. It has already been
brought on record, that the firm was a fictitious one and had no real
existence. The DRI findings have divulged that Yash International the
importing firm, in active connivance with Mayur Mehta and his three
employees, Swati Vora @ Monika, Santosh Mishra, Shri Joydeb Das,
along with Md. Nasir Uddin, Sajal Das as middlemen, the Customs
Broker namely Sadguru Forwarders Pvt. Ltd and their representative,
Aloke Ghosh, the Customs officers viz. Navneet Kumar, Vikki Kumar
and Pranabananda Bala and some other unknown persons had entered
into a conspiratorial arrangement to illegally import and clear high value
consignments for home consumption, misdeclaring them, therely
evading payment of leviable customs duties and escaping other
regulatory requirements.
The investigation agency has thus rightfully invoked Section
28(4) of the Customs Act, 1962 to demand duty from the importer. For
sake of completeness Section 28(4) of the Customs Act, 1962 is
reproduced below for reference:-
Section 28... Recovery of duties not levied or not paid or short-
levied or short paid or erroneously refunded.
(4) "Where any duty has not been [levied or not paid or has been
short-levied or short-paid] or erroneously refunded, or interest
payable has not been paid, part-paid or erroneously refunded, by
reason of,- (a) collusion; or (b) any wilful mis-statement; or (c)
suppression of facts, by the importer or the exporter or the agent or
employee of the importer or exporter, the proper officer shall, within
five years from the relevant date, serve notice on the person
29
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
chargeable with duty or interest which has not been [so levied or not
paid] or which has been so short-levied or short-paid or to whom the
refund has erroneously been made, requiring him to show cause why
he should not pay the amount specified in the notice".
31. It is thus clear that there is a mandatory requirement of either (a)
collusion; or (b) any wilful mis-statement; or (c) suppression of facts by
the importer, where there is short levy of duty for invocation of Section
28(4) of the Customs Act, 1962. As, on tabulation a grave mismatch in
the declaration made by the importer, while comparing the export and
import declarations/documents and clearance of the goods imported
vide impugned Bills of Entry and declaration made by the exporter at
the port of shipment in respect of these Bills of Entry is obvious. The
facts on record reveal a huge mis-declaration in respect of the valuation
of the goods and there is also blatant mis-declaration in respect of the
description of the items in many of the impugned Bills of Entry. As at
the port of shipment, the declared items/products is ‗Mobile Phone.
Mobile Phone Parts/ Accessories', however the importer has declared
multiple different items viz. Footwear, Nails, Playing cards, Auto lamps
etc. in the impugned Bills of Entry at the time of their clearance from
Customs in India.
32. Accordingly, the basic elements of wilful mis-statement and
suppression while declaring import goods and their values and also
collusion of the importer with other co-noticees to evade leviable
Customs duty with a malafide intent, as discussed at length supra, are
ingrained in the instant case. Thus the investigation agency has rightly
invoked the provisions of Section 28(4) of the Customs Act, 1962. It is
seen that malafide intent of the importer by way of wilful mis-statement
in terms of valuation, description of goods etc. and collusion with other
co noticees (with the aid of departmental Customs officers) is quite
evident. Hence, the instant notice cannot be considered to be hit by
limitation, as the elements of mis-declaration and/or suppression of
facts of the impugned consignments and collusion for invoking the
extended period clause get satisfied and met with.
30
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
33. A question has also been raised, as regards the declared valuation
in respect of the 17 consignments since cleared. It is not in dispute that
the declaration furnished on the import documents was incorrect and
improper, when compared with the evidence as received from overseas.
The following 17 Bills of entry were all imported by the Yash
International from suppliers based out of Hong Kong:
(1) 9518201, (2) 9513525, (3) 9513486 all dated 01.05.2017, (4)
9535270 dated 02.05.17, (5) 9543614 dated 03.05.17, (6) 9690544 &
(7) 9698707 both dated 15.05.17, (8) 9706936 dated 16.05.17, (9)
9736778 dated 18.05.17, (10) 9760713 dated 19.05.17, (11) 9786512
dated 22.05.17, (12) 9832381 & (13) 9831112 both dated 25.05.17,
(14) 9837046 dated 26.05.17, (15) 9875520 & (16) 9876042 both
dated 29.05.17 and (17) 9940868 dated 02.06.17
Since the said transaction value was not correctly declared, it was
liable to rejection under Rule 12 of Customs Valuation Rules, 2007 and
hence required to re-determined to arrive at the correct
transaction/assessable value. The lower authority has thus reworked
the said value as Rs.5,46,47,936/-, in accordance with the manner as
laid down in law. In this regard, it may also be pointed out that the
Hon'ble High Court of Kerala in the case of Commissioner of Customs
Vs. PV Ukku International Trade [2009(235) ELT 229(Ker)], had
held that the adoption of Transaction Value under Rule 4 of the Customs
Valuation Rules would apply only when the transaction value declared
was found to be genuine and correct. In the present case the goods
were largely declared as to what they were not, obviously there being a
variation in the value and description declared. The direct evidence, as
sourced through diplomatic channels regarding the actual value and the
description of goods cannot be refuted and is required to be considered
as sufficient proof, which alone can form the basis of the determination
of the transaction value.
31
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
34. The departmental Customs officers viz. Navneet Kumar, Vikki
Kumar and P. Bala, who are co-noticees in the instant case, have
defended the declared the value of the impugned goods and cited the
judgement of the apex court in the case of Commissioner of
Customs (Imports), Mumbai -Vs- M/s Ganpati Overseas 2003
(286) ELT 802 SC, in support of their stance. However, the said
judgement has no relevance here as the investigation agency could
manage overseas declarations that and contained signed trade
declarations and transaction values of the 17 impugned consignments
from the port of shipment i.e. Hong Kong sourced through diplomatic
channels. There was no retracing of the said declaration, as in the
Ganpati Overseas case. Thus, it cannot be denied that the goods were
mis-declared both in terms of description and value. Even misdeclaring
the actual quantity of import goods was resorted to. In terms of CVR,
2007, there is no bar for redetermining the value of the said
consignments under Rule 3(1) thereof and there would be no need to
proceed to Rule 4 of the said Rules and to look into for
contemporaneous imports values/NIDB data. This is so, as the
transaction value can be determined under Rule 3(1) of CVR, 2007 and
therefore there is no recourse to go to any of the exception laid in Rule
3(2) ibid. Thus there is no case for sequential application of valuation
rules for transaction value, reworking out the transaction/assessable.
Further, when the goods are mis-declared in terms of speicific
particulars like description etc. then transaction value can obviously be
rejected in terms of Rule 12 of CVR, 2007 read with Section 14 of the
Customs Act, 1962. Therefore the raising of the plea for valuation of the
goods, as not in accordance with the contemporaneous import values in
terms of NIDB data under Rule 4 or 5 of CVR, 2007, would hold no
substance, being no more than a baseless and a frivolous argument.
35. The argument that some Bills of Entry were RMS facilitated,
where the appellant officers had no specific role to play, nonetheless is
not very material, as it is noticed that not all Bills of Entry impugned
herein were so. We note that several of the said Bills of Entry were duly
appraised, being non-RMS and were subjected to both appraisement by
32
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
the group officers and examination and assessment by the shed
officers. Had the appellants been vigilant and sincere, based on a
truthful assessment, if undertaken, the falsity of the imports and the
true credibility of the importer and the imports would have all been
established long back, and suitable measures to safeguard revenue
could have been taken, like introduction of ―alert‖ in the EDI system, or
need to specifically interdict the RMS facilitated Bills of Entry and
subject them to proper physical examination. An offence be it singular
or multiple continues to remain an offence.
36. Under aforesaid circumstances the Courts have repeatedly upheld
the valuation, as adopted on the basis of export declarations. Thus, the
CESTAT, Principal Bench in the case of Konia Trading Co. vs.
Commissioner of Customs, Jaipur [2006 (199) ELT 644(Tri.-
Del.)], had held that the authenticity of the report as made by an
authority, who had come to know about inaccurate export declarations
and variations in the CIF value declared would stand proven in the
absence of any evidence to the contrary. That is to state that without
resorting to any presumption, evidentiary value of official report is
sufficient to establish under-valuation done by appellant. The relevant
extract of the said judgement is reproduced as under:-
―......8. The report dated 24-7-1999 was written by an officer of the Customs &
Excise Department of Hong Kong in response to a request for investigative
assistance, as noted therein, made through the Consulate General of India. It
refers to the name of the importer, M/s. Zaptron (HK) Ltd. It is stated in the said
letter that the Customs and Excise Department of Hong Kong had completed
their verification of the invoice values of two consignments of assorted toys
exported to India by Zaptron (HK) Ltd. The letter clearly refers to Invoice KT-
1298-97 and Invoice No. KT-1071-98 and states that the CIF values stated
therein were false because the actual CIF values of the goods in the export
declaration were US $ 28,901.06 and US $ 37,562.56 respectively. It is also
stated that when the said company lodged the export declarations before
the Customs & Excise Department of Hong Kong, it declared incorrect FOB
value of goods and they would prosecute the company for lodging
inaccurate export declarations. It was also mentioned that the company had
issued the false invoices at the request of the Indian importer and the amounts
33
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
were settled on D/P terms while the balances were paid by cheque or telegraphic
transfer. The Commissioner had proceeded to determine the value under Rule 5,
but could not find any transaction value in respect of identical goods at or about
the same time, nor was he able to determine it by resorting to Rules 6 and 7. It is
in this background that he placed reliance on the said report. The said report
constituted a valid piece of material because from the official enquiries, it
transpired that the export declarations made before the Customs & Excise
Department, Hong Kong in respect of these two invoices by M/s. Zaptron (HK)
Ltd. were inaccurate declarations. The discrepancy in respect of these two
invoices was detected by the Customs & Excise Department, Hong Kong, as
communicated in the said report dated 24-7-99 and there was no reason for the
Commissioner to suspect the accuracy of the statements made therein, because
the Customs & Excise Department of Hong Kong was the authority who had
conic to know about the inaccurate export declarations made by the said exporter
before it and could, on comparison of the CIF values declared by the exporter
before them and the CIF values mentioned in the two invoices, authentically
inform the Customs authorities here about such discrepancy. The document
dated 24-7-99, which was an official report submitted in pursuance of the
enquiries made by the department carried its own evidentiary value without
resorting to any presumption. The contents of the said document were sufficient
to establish the fact that the appellant had under-valued the goods covered by
these two invoices, since the correct valuation declared before the Customs
authorities of Hong Kong in respect of these two invoices as per their official
record was now authentically communicated in this report.
9. For the foregoing reasons, we do not find any valid ground for interfering with
the impugned order. The appeal is, therefore, dismissed‖
37. Likewise, this Tribunal in the case of Craft Studio vs.
Commissioner of Central Excise, Jaipur reported in [2004 (163)
ELT 109(Tri.-Del.)], under identical set of circumstances, upheld the
order of the lower authority confirming the short levy and imposing
penalty on the accused persons. Material extract of the order is as
under:-
―....5. This is a clear case of undervaluation of goods in official documents and
misdeclaration of price in order to evade customs duty. The investigations by
the Hong Kong Authorities have clearly brought out the modus operandi
adopted by the appellant and its supplier to undeclared price in invoices for
34
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
evasion of customs duty. In these circumstances, no interference with the duty
demand and penalty is called for.
6. In view of what is stated above, the impugned order is confirmed in relation to
duty demand and penalty......‖
38. We note that the authorities below have also relied upon the
judgement of the Tribunal, in the case of Winstar Electronics vs.
Commissioner of Customs, Jaipur [2006 (201) ELT 76(Tri.-
Del.)], wherein based on the investigations conducted by DRI through
official channels, it was revealed that value of goods in question as
declared by foreign supplier in export documents submitted before their
country's Customs, was much higher than that stated in the import
invoice tendered at the time of assessment. The importer had thus mis-
declared the value of imported goods in collusion with the foreign
exporter by furnishing a wrong invoice. The Tribunal thus found no
reason to interfere with the findings of the lower authorities which were
based on facts and correct appreciation of law.
39. In the case of Mahalxmi International Exports vs.
Commissioner of Customs, Jaipur [2004 (169) ELT 68(Tri.-
Del.)], a case based on overseas enquiries conducted through
diplomatic channels, it was noted by the Tribunal as under:-
―...... 9. The above report also has an annexure giving full details of the
export consignments invoice wise. It is clear from the above report that the
data about value has been furnished by Hong Kong Customs after detailed
investigations. Undoubtedly, those investigations had gone into the depth of
the transaction inasmuch as it has reported on all aspects of the transaction. It
has stated that the foreign supplier ―issued‖ the false invoices for customs
clearance purpose. It also issued genuine invoices to the Indian importer for
collection of payment. The report also points out that ―Indian Importer paid the
invoiced amounts in the false invoices by DP and settled the balance due by
telegraphic transfer. The letter also makes it clear that the investigation
covered 8 consignments particulars of which were tabulated in the annexure.
From this, it is clear that the real transaction value between the parties has
been ascertained by the Hong Kong Customs through a thorough investigation
The appellant's response has been only to protest their innocence and to pick
some formal objections. We are of the opinion that the Revenue authorities
35
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
were right in rejecting these objections and concluding findings based on the
facts reported by the Hong Kong Customs authorities. This case is altogether
different from the cases cited by the appellants in their defence. The decision
of the Apex Court in CC, Bombay v. East Punjab Traders [1997 (89) E.L.T. 11
(S.C.) = 1997 (18) RLT 537 (S.C.)] case related to obtaining of some
document from abroad by visiting customs officer and using that as evidence
in customs proceedings. As against that, in the present case, the customs
authorities of another jurisdiction have investigated the transaction at their end
and have reported findings. Some documents have also been forwarded to
substantiate those findings. This judgment of the Apex Court has no
application to the present case. Similar is the position in respect of other
decisions also. The present case is similar to the case of Orson
Electronics Pvt. Ltd. v. Collector of Customs, Bombay [1996 (82) E.L.T.
499 (Trib.)] wherein the Tribunal held that export declarations filed by the
exporters themselves in the exporting jurisdiction, constituted reliable
evidence. This order has been confirmed by the Apex Court [1997 (93)
E.L.T. A133 (S.C.)]. In the present case, apart from the export declarations,
the transactions have been investigated by the Hong Kong customs
authorities in depth and they have reported their findings. In these facts and
circumstances we are convinced that the values reported by the customs
authorities at Hong Kong constituted the correct transaction values of the
goods under import and the goods were required to be assessed at those
values. The initial short levy being the result of an elaborate fraud involving
both the foreign supplier and the Indian importer, the duty was required to be
recovered through proceedings invoking the extended period permitted under
Section 28 of the Customs Act. In view of this, the duty demands made in the
impugned order are confirmed. The deliberate nature of the fraud is clearly
brought out by the report of the Hong Kong customs. That report states that
the exporter had issued ―false invoices‖ for customs purpose‖. It also states
that the Indian importer settled the entire payment. Such duplicitous conduct
of the parties make them liable to penalty under Section 112(m) of the
Customs Act as held by the Commissioner. Invoking of Section 114A of the
Customs Act which came into force subsequent to some of the imports, makes
no difference to the sustainability of penalty, since that section relates only to
the quantum of penalty and not to liability to penalty. We are satisfied that in
the deliberate nature of the offence, a penalty equivalent to the duty amount is
not excessive at all. Further Section 112 permits penalty not exceeding the
value of the goods...‖
(emphasis supplied)
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
In the instant case, it is found that incorrect, incomplete and
manipulated entries have been made in the Bills of Entry filed by the
importer. This thus amounts to incorrect furnishing of description and
valuation, which has led to incorrect assessment of Customs Duty. All
this is done with expressly malafide intentions to evade applicable
customs duty.
40. The facts of the matter, are also corroborated by statements of
other co-accused and the institutional evidence as gathered by the
authorities during the course of its investigations. The argument that
the report of the graphologist is based on certain document, which is a
part of a live consignment, does not cut much ice as the graphologist
report is with regard to the identification and verification of handwriting
and the signatures as a domain expert. The fact that in seven out of the
17 consignments, no assessment and no examination orders were
issued and the fact of no role of the officers coming into play, maybe as
it is, but evidently still administrative control and role of the officers
would not cease to exist. In the remaining set of 10 consignments, the
facts do certainly bring out the active role of the appellants, as
discussed in pre paras. Moreover, no assessment can be said to be
completed without the concurrence of the Appraising Group AC/DC
incharge. Though ordinarily not done, nothing prevents the group
incharge to interdict the RMS Bill of Entry and have it picked up for a
routine examination/assessment. Not having so undertaken, lays
emphasis on the active collusion, pickingup only pre selected packages
for checking/examination etc. at the behest of the fraudster, ably
assisted by the departmental officers.
41. It is a well known fact that in such suspicious and fishy cases,
original documents are generally made unavailable to the authorities
and quickly removed from the scene, so as to leave no trail of the role
played. All primary piece of evidence is destroyed. Nonetheless in
today's digital age, footprints by way digital signatures are captured
which bring about a complete corroboration of the issue. The absence of
availability of physical documents is therefore not material to impute
37
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
culpability of the accused appellants. We therefore find no substantive
merit in the argument of the appellants about the lack of physical/hard
copies of the relevant document. As admitted by the learned Counsel
that the Shed Appraiser had given Out of Charge, in only one
consignment or that Navneet Kumar had given manual instruction in
respect of one consignment alone or that Pranabnada Bala had
examined just one consignment is evidently not only enough to nail the
misdoings of the appellant, but is also determinative of existence of
mens rea, corroborates the conspiracy theory and testifies the
complicity on part of the appellants. In fact it only goes in to strengthen
and support the Revenue's narrative. Violation of law by deliberate
design, whether in one instance or multiple instances remains an
offence under the statute, only the punishment rendered may be
impacted by being a lone offence or a repeated one. Linking the various
corroborations and evidence collected by the Revenue, be it as a result
of ―Overseas Enquiry‖, or verification of case papers/time
stamps/allowing clearance of goods etc. all point out to an unholy
mechanics of permitting imports illegally by way of a conspiracy
hatched or by way of predefined, predetermined and identified
examination of packages as contained in the consignment referred in
the matter. Corroboration of the testimony and juxtaposing with the
facts and evidence on ground clearly establish the active, conscious and
conspiratorial role played by all of the appellants, herein.
42. The role of Appraising Group DC is to ensure correct classification
and assessment (including valuation) as also enforcement of import
control policies and other allied laws applicable to import goods, as
enumerated in Para 2 of Chapter-2 of the Appraising Manual. Below is
the relevant extract thereof:
― 2. In addition to the duies of general nature mentioned at para 1 above an
Asstt. Collector in- Charge of the Appraising Group will be done by the
Appraiser in his group with a view to ensuring correct classification and
assessment (including valuation) as also enforecement of import control
policies and other allied laws applicable to import goods...‖
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
Further, role of Dock/Shed DC inter alia is to ensure that the sheds in his
charge function smoothly with reference to the the activities relating to
examination of cargo. He should check atleast 10% of the Bills of entry passed
by the Appraisers. He should particularly ensure that Bills of Entry where large
amounts of duty are involved are invariably taken for test-check, as
enumerated in Para 4 & 4A of Chapter-2 of the Appraising Manual. The said
relevant extract is as follows:-
"..4. Duties of (Astt, Collector) Docks
The Asstt. Collector in charge of the Jetties and Docks, is responsible for the
smooth and efficientworking o all the outdoor appraising unit in his charge, In
particular he will be responsible for :
(i) Proper distribution of the staff so as to secure best performance of Customs
work under his charge. He shall keep a register showing disposition of Appraisers
and Examining Officers.
(ii) Overall supervision and periodical test check ofthe work of his officers.
(iii) Regular. and surprise visits to all examination sheds in his jurisdiction, where
he will spend a sufficient portion of each day, select certain bills of entry and, with
assistance of the shed staff or any reserve staff he may possess, conduct
examination and appraisement of the goods and counter sign the relative bills of
entry. He should keep appropriate record of Bills of entry Test checked by him.
(iv) Writing the annual confidential reports on the conduct of the Appraisers and
Examining Officers, in his charge.
(y) Reviewing the scales of check and methods of examination & weighment to
ensure that they are adequate without becoming excessive and burdensome and
for submitting an annual review report in consultation with the Group A.Cs. to the
Collector through the Deputy Collector of Customs with reccommendation for
changes in the scale of check and method of
examination or weighinent, where appropriate.
(i) Dealing with complaints of importers/expoters' representative, Clearing
Agents, and others.Where necessary he should give suitable advice to the
Asstt. Collector of the group concerned of his opinion in the matter and his
suggestion for remedial action in genuine cases.
(vii) Personally supervising examination and/or weighment of particularly difficult
or valuable cargo either on his own initiative or when specially asked to do so by
the Scrutinising Group Asstt. Collector or higher officials.
(viii) Generally familiarising himself with the working conditions of each transit
Shed and warehouse within his area and also the examination centre and bring
difficulties to the notice of the appropriate Port authorities (or senior officers in the
Custom House) for prompt removal where it is beyond his own powers to do so.
(ix) (a) Verifying that samples are properly drawn. He should conduct surprise
çhecks for this purpose. (b) Verifying quality of sealing of export cargo. (c)
Waiving weighmcnt upto permissible limits at his descretion ,
(x) Attending to disposal of minor irregularities in the Docks in the matter of the
requirements of Trade and Merchandise Marks Act, 1958. (For further
instructions regarding infringement of Merchandise Marks Act see para-14,
39
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
Cbapter--'Trade & Merchandise Marks Act & Indian Patents & Designs Act'),
(xi) Ensuring availability and maintenance at the respective shed /examination
centre, of important Customs reference books, such as Customs Tariff
Act/Schedule, Import Trade Control Policy or Tariff Guide, Circulars.
Departmental Orders, Office orders. The relevant Circulars/D.Os etc. should be
properly maintained upto date and be available for proper reference.
4A. Duties & Responsibilities of Astt. Collector Docks (upon
recoccomendation of customs study team)
(a) The Asstt. Collector should keep a general control over the activities in the
sheds under his charge. He should collect and keep necessary data regarding
volume of work in each shed and should send a report monthly to the Collector
regarding the activities in the sheds under his jurisdiction. Such reports should
deal with the public relations aspect, volume of work and all cases of important
detections made regarding evasion of duty or misdeclaration of contents and the
points pursued with the Port Commissioners in respect of cargo (Short-land ed
cargo, cases with missing contents, damaged goods, missing cases etc.).
(b) The Asstt. Collector shall be responsible to ensure that the sheds in his
charge function smoothly with reference to the activities relating to examination of
cargo. He should look into the difficulties of the individual traders and should
attend to them immediately on the spot. He should ensure that the trade is not
put to any undue difficulties by redundant queries raised by the appraisers.
(c) He should test-check at least 10% of the Bills of Entry passed by the
Appraisers. He should particularly ensure that Bills of Entry where large amounts
of duty are involved are invariably taken for test-check. He should also keep a
note of the Bills of Entry so checked and should sign on those BE....‖
43. In view of the above, the allegations of the noticees are baseless
since all the cases are inter-related as pertaining to the same smuggling
racket, running at around the same time involving same set of
manipulation, modus, fake importers, noticees and officers concerned.
The instant case pertains to the past import consignments of M/s. Yash
International, its live consignment too was found to be mis-declared
and part of the same racket. Further, Table-4 in the Para 13.1 of the
impugned SCN as discussed earlier and reproduced in para 18 above,
brings out the explicit role of the noticee officer(s) in colluding and
acting in a manner in gross violation of law promoting smuggling of
goods, by their deliberate actions.
44. Reading of the above could suggest that the aforesaid order has
largely dealt upon the role played and legal ramification in the context
of the third departmental officers hence to avoid any such impression,
even on the cost of the repetition of the following few lines. In respect
of the 4th appellant, Shri Sajal Das need to be placed on record. Thus as
brought out earlier Sajal Das is one of the prime conduits was full aware
and knew about the nature of work involved. It is only stated earlier
40
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
that for the said reason, he accused his own firm in the impugned
business of imports in the matter. Investigations have revealed that he
actively concerned with finding of appropriate person who could carry
out the clearance of mis-declared consignments and in which process
one Nasir Uddin was located. The investigator brought out on record the
cash flow (remittance of Rs. 5 lakhs) took place between one Pasific
Enterprises to Nirmala Bala Trading firm related to Shri Sajal Das.
Essentially speaking Sajal Das has been a key player behind the scene
who was providing necessary assistance in the clearance of mis-
declared and contraband goods liable for confiscation and thereby his
conduct and acts of omission renders himself liable for penal action in
law. His role in helping assured in make out because of which false
import documents that did not correspond with the actual imports has
already been brought.
45. Amongst other arguments, the learned advocate has submitted
that natural justice was not afforded to them. We note from records
that the impugned show cause notice along with its RUDs was duly sent
to all noticees. The same is not disputed. Attested copy of the
SCN/RUDs were also supplied to the noticees at the time of personal
hearing, as requested. Ample opportunity of being heard was extended
to all the noticees, to enable them defend their case. In so far the
present appellants are concerned, all of them have actively participated
in proceedings before the lower authorities. This argument therefore is
dismissed at the very threshold.
46. Adjudication Procedure of offences under the Customs Act, 1962
is set out in section 122A under Chapter XIII of the Act, ibid which
reads as under:
"Section 122A - Adjudication Procedure
(1) The adjudicating authority shall, in any proceeding
under this Chapter or any other provision of this Act, give
an opportunity of being heard to a party in a proceeding, if
the party so desires.
(2) The adjudicating authority may, if sufficient cause is
shown at any stage of proceeding referred to in sub-
41
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
section (1), grant time, from time to time, to the parties or
any of them and adjourn the hearing for reasons to be
recorded in writing:
Provided that no such adjournment shall be granted more than
three times to a party during the proceeding.‖
Chapter XIII of the Act ibid deals with Searches, Seizure and Arrest.
Adjudication under the Customs Act, 1962 as laid down under Section
122 (jurisdiction) and 122A (procedure) of the Act ibid, is a quasi-
judicial process. The distinction between a judicial and a quasi-judicial
process has been clarified in the case of The Bharat Bank Ltd., Delhi
vs Employees Of The Bharat Bank, 1950 SCR 459; (AIR 1950 SC
188), wherein the Hon'ble Apex Court has mentioned, inter-alia, that:
―....The other fundamental test which distinguishes a judicial
from a quasi-judicial or administrative body is that the former
decides controversies according to law, while the latter is not
bound strictly to follow the law for its decision. The investigation
of facts on evidence adduced by the parties may be a common
feature in both judicial and quasi-judicial tribunals, but the
difference between the two lies in the fact that in a judicial
proceeding the Judge has got to apply to the facts found, the
law of the land which is fixed and uniform. The quasi-judicial
tribunal on the other hand gives its decision on the differences
between the parties not in accordance with fixed rules of law
but on principles of administrative policy or convenience or
what appears to be just and proper in the circumstances of a
particular case.‖
47. The judgments buttressing the above contention are mentioned
for reference as under:-
a) In the case of Assistant Commissioner, Commercial Tax
Department Vs M/s Shukla & Brothers [2010 (254) E.L.T 6
(S.C.)],the Hon'ble Supreme Court held that Principles of
Natural Justice have twin ingredients, namely (i) person, likely to
42
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
be adversely affected by action of authorities is to be given
notice to show cause and (ii) opportunity of hearing. It has been
further observed by the Hon'ble Court that violation of either of
them, in the given facts and circumstances of a case, vitiates the
order itself.
We find that in the subject case, both the ingredients laid down
by the Apex Court have been satisfied and met with to the hilt,
as also noted by the lower authority.
b) In the case of Uma Nath Pandey vs State of U.P.
[2009(237) E.L.T 241(S.C.)], the Hon'ble Supreme Court held
that there are two rules of Principles of Natural Justice. First rule is
'nemo judex in causa sua' meaning 'no man shall be a judge in
his own cause' and second rule of natural justice is 'audi alteram
partem', meaning no one should be condemned unheard. It is
observed by the Hon'ble Court that notice is first limb of this
principle, notice must be precise and unambiguous and it is essential
that party is put on notice before passing adverse order against him.
Second limb is time given should be adequate so as to enable party
to make its representation.
In the facts of the present case, none of the two limbs can be held
to be violated of.
48. It is on this principle that Natural Justice ensures that both sides
should be heard fairly and reasonably. As a part of this principle if any
reliance is placed on evidence on record against a person, then that
evidence on record must be placed before the accused, to enable him
offer his comments thereon. No natural justice requires mandatorily
that there should be a kind of formal cross-examination, exceptions do
exist to the basic principle. Formal cross-examination is part of
procedural justice and governed by Rules of Evidence. It is the creation
of Courts and not a part of natural justice but of legal and statutory
justice. It is agreed that Natural Justice certainly includes that any
statement of a person before it is accepted against somebody else, that
somebody else should have an opportunity of meeting it. Whether it is
43
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
by way of interrogation or by way of comment, it does not matter. So
long as the party put to notice has a fair and reasonable opportunity, to
see, comment, and criticize the evidence, statement or record on which
the charge has been made against him, the demands and test of natural
justice are satisfied. Cross-examination in that sense is not the
technical cross-examination as offered in a Court of Law, the Witness
Box, as held in the judgement of Kishanlal Agarwalla v. Collector of
Land Customs & others ( AIR 1967 Cal 80).
49. It is also a settled position that proceedings before a quasi-judicial
authority is not at the same footing as proceedings before a Court of
law and it is the discretion of the authority whether request of cross
examination, if any, is required to be allowed in the facts and
circumstances of the case and in the interest of natural justice.
Moreover, it is incumbent upon the seeker of the cross-examination to
state and specify the purpose and objective it seeks to achieve through
the said exercise. Denial of request for cross-examination has been held
as not violating the Principles of Natural Justice during quasi-judicial
proceedings. Thus:
I. In the case of Kanungo & Co. Vs. Collector of Customs, Calcutta &
Others [1993(13) E.L.T. 1486 (S.C.)], wherein it was unequivocally held that for
proceedings under Customs Act, the right to compliance to the Principles of
Natural Justice does not cover the right to cross examination of witnesses.
Relevant Para 12 is reproduced wherein the Hon'ble Supreme Court observed as
follows -
―In our opinion, the Principles of Natural Justice do not require that in matters like
this the persons who have given information should be examined in the presence
of the appellant or should be allowed to be cross-examined by them on the
statements made before the Customs Authorities. Accordingly, I hold that there is
no force in the third contention of the appellant.‖
II. In the case of Suman Silk Mills Pvt. Ltd. Vs. Commissioner of Customs &
C.Ex., Baroda [2002 (142) E.L.T. 640 (Tri.-Mumbai)], Tribunal observed at Para
17 that-
17. Counsel also made a grievance on the ground that cross-examination
of certain dealers were not made available. We have perused the recent
judgments of the Tribunal on the issue of cross-examination in the
44
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
judgment in the case of Gobind Lal v. CC - 2000 (117) E.L.T. 515, the
Tribunal held that where the statements were confessional and where the
witnesses were not given for cross-examination principles of natural justice
could not be held to have been violated. In the case of Liyakat Shah v.
CCE - 2000 (120) E.L.T. 556, the Tribunal has held that cross-examination
was not a mandatory procedure to be allowed in all cases. Same view was
held in the case of Poddar Tyres (Pvt.) Ltd. v. CCE, Chandigarh - 2000
(126) E.L.T. 737.
III. In the case of Commissioner of Customs, Hyderabad V. Tallaja Impex
(2012(279) ELT 433 (Tri.)0, it was held that-
"In a quasi-judicial proceeding, strict rules of evidence need not to be followed.
Cross examination cannot be claimed as a matter of right."
To the said effect is also the case of Shivom Ply N-Wood Pvt. Ltd. Vs
Commissioner of Customs & Central Excise Aurangabad- 2004(177) E.L.T
1150(Tri. -Mumbai): - wherein it has been held that cross-examination cannot
be claimed as a matter of right.
IV. In the case of Patel Engg. Ltd. vs UOI (2014 (307) ELT 862 (Bom.))
Hon'ble Bombay High Court has held that;
23. Chinnappa Reddy, J. in S.L. Kapoor case [(1980) 4 SCC 379] laid
down two exceptions (at SCC p. 395) namely, if upon admitted or
indisputable facts only one conclusion was possible, then in such a case,
the principle that breach of natural justice was in itself prejudice, would not
apply. In other words if no other conclusion was possible on admitted or
indisputable facts, it is not necessary to quash the order which was passed
in violation of natural justice. Of course, this being an exception, great care
must be taken in applying this exception.
V. Hon'ble Punjab and Haryana High Court in its decision in the case of Azad
Engg Works v/s Commissioner of Customs and Central Excise, reported as
2006(2002) ELT 423, held that;
―.......... It is well settled that no rigid rule can be laid down as to when Principles
of Natural Justice apply and what is their scope and extent. The said rule contains
principles of fair play. Interference with an order on this ground cannot be
mechanical. Court has to see prejudice caused to the affected party. Reference
may be made to judgment of Hon'ble the Supreme Court in K.L. Tripathi v. State
Bank of India and others, AIR 1984 SC 273‖
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
VI. Hon'ble Tribunal in the case of P Pratap Rao Sait v/s Commissioner of
Customs reported as 1988 (33) ELT (Tri) has held in Para 5 that:
―.......... The plea of the learned counsel that the appellant was not permitted to cross-
examine the officer and that would vitiate the impugned order on grounds of natural
justice is not legally tenable.
VII. Similarly in A.L Jalauddin v/s Enforcement Director reported as
2010(261) ELT 84 (Mad HC) the Hon High Court held that ;
―.... Therefore, we do not agree that the Principles of Natural Justice have
been violated by not allowing the appellant to cross-examine these two
persons. We may refer to the paragraph in AIR 1972 SC 2136 = 1983 (13)
E.L.T. 1486 (S.C.) (Kanungo & Co. v. Collector, Customs, Calcutta)‖
50. The Courts and the Tribunal have repeatedly held that there is no
right in perpetuity to insist for cross-examination as a part of procedural
justice system. The following cases may be cited to reinforce the
contention:
I. Poddar Tyres (Pvt) Ltd. v. Commissioner - 2000 (126) E.L.T. 737: - Wherein
it has been held that cross-examination not a part of natural justice but only that
of procedural justice and not a ‗sine qua non'.
II. Kumar Jagdish Ch. Sinha v. Collector - 2000 (124) E.L.T. 118 (Cal H.C.): - In
this case it has been held that the right to confront witnesses is not an essential
requirement of natural justice where the statute is silent and the assessee has
been offered an opportunity to explain allegations made against him.
III. A.K. Hanbeen Motarred vs. Collector - 2000 (125) E.L.T. 173 (Mad HC):
wherein it has been held that the strict rule of burden of proof applicable to
criminal prosecution may not be applicable to proceedings before Customs
authorities.
51. It is observed that statements recorded under Section 108 of the
Customs Act, were voluntary and confessional in nature. There is
nothing to show that such statements were given under duress or a
threat. Moreover, the independent evidence as gathered by way of
overseas enquiry is irrefutable. Nothing has also been stated before the
lower authority, as to what purpose the corss-examination was being
sought for. The plea is no more than a ruse now, made out to criticize
the order. Therefore denial of cross examination cannot be held to be
violative of Principles of Natural Justice, under the given circumstances.
Moreover, denial of request for cross-examination of Noticee who
tendered voluntary statements during investigations has also been
upheld by Courts on several instances as the factual position varies
from case to case and circumstance to circumstance. Thus:
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
I. In the case of Surjeet Singh Chhabra v. UOI, reported in 1997 (89) E.L.T.
646 (S.C.)], it was held that-
―Customs Officials are not police officers and admission made before them though
retracted binds the deponent. In view of voluntary statements recorded and such
statements not retracted did not warrant cross-examination when other circumstantial
provided reliable basis corroborating the statements. When nothing surfaced that the
witnesses had any enmity with appellants, those were not liable to be discarded nor
required to be put to cross-examination.‖
II. In the case of Jagdish Shanker Trivedi Vs. Commissioner of Customs,
Kanpur [2006 (194) E.L.T. 290 (Tri.-Del.)], Tribunal observed at Para 7.2
7.2 In the present case, however, ample opportunities were given to Ashish Kumar
Chaurasia and other appellants to deal with the material which was sought to be
relied on against them by referring it in the show cause notice. We have no reason
to doubt the statement made in the impugned order that as many as fourteen
opportunities of personal hearing were given from 5-2-1994 to 16-11-1998 to the
appellants and the desired persons for cross-examination were also called, but,
either adjournments were sought on one ground or other or irrelevant enquiries were
raised with the result that proceedings of personal hearing could not be conducted
properly. It was, therefore, rightly held that there was no justification for prolonging
the adjudication. It is evident from the record that the appellants whose statements
were recorded under Section 108 of the said Act had made confessional statements
implicating themselves under Section 112 of the Act and such statements were
clearly binding on them. There was no question of their statements being recorded
under duress, because as noted above, on 18-12-1992 when two vehicles were
intercepted at two distant places namely at Kanpur and Ghaziabad near Delhi,
statements of four different persons were recorded by different sets of officers
reflected the involvement of the same persons including the appellant, Ashish
Kumar Chaurasia, and there was no possibility of the same story being cooked up at
two different places by the department. The drivers of the two vehicles had no
enmity against the appellant Ashish Kumar Chaurasia, or the appellant Ram Avatar
Singhal and their version, showing the involvement of Ashish Kumar Chaurasia as
the person who kept the silver ingots of foreign origin concealed in his premises and
giving them to Ram Avatar Singhal for melting and disposing them of, has a ring of
truth. If statements were recorded under compulsion and duress at two different
places by two different sets of officers, when two vehicles carrying contraband silver
were intercepted there would hardly be any scope for the same persons being
involved. Jagdish Shanker Trivedi was a lawyer by profession and he would have
not given any statement under pressure on 18-12-1992. This subsequent retraction
by stating that he only took a lift because of curfew is a blatant effort to riggle out of
the reality that reflected in the statements of the driver, Ram Kumar Kashyap and
other witnesses. The confessional statements of the appellants who made them
were binding on them. In this context, we may refer to the decision of the Supreme
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
Court in Surjeet Singh v. Union of India reported in 1997 (89) E.L.T. 646 (S.C.) =
AIR 1997 SC 2560 where the petitioner sought cross-examination of the witnesses
who said that the recovery was made from the premises of the petitioner, held that
the confession made by the petitioner was binding on him and, therefore, failure to
give him the opportunity to cross-examine the witnesses was not violative of
principles of natural justice. In para 3 of Hon'ble the Supreme Court judgment held :
―3. It is true that the petitioner had confessed that he purchased the gold
and had brought it. He admitted that he purchased the gold and converted
it as a Kara. In this situation, bringing the gold without permission of the
authority is in contravention of the Customs Act and also FERA. When the
petitioner seeks for cross-examination of the witnesses who have said that
the recovery was made from the petitioner, necessarily an opportunity
requires to be given for the cross-examination of the witnesses as regards
the place at which recovery was made. Since the dispute concerns the
confiscation of the jewellery, whether at conveyor belt or at the green
channel, perhaps the witnesses were required to be called. But in view of
confession made by him, it binds him and, therefore, in the facts and
circumstances of this case the failure to give him the opportunity to cross-
examine the witnesses is not violative of principle of natural justice. It is
contended that the petitioner had retracted within six days from the
confession. Therefore, he is entitled to cross-examine the Panch
witnesses before the authority takes a decision on proof of the offence. We
find no force in this contention. The confession, though retracted, is an
admission and binds the petitioner. So there is no need to call Panch
witnesses for examination and cross-examination by the petitioner.‖
It may be noticed that the above observations were made even though the petitioner
had retracted within six days from the confession. The Supreme Court held that
confession though retracted is an admission and was binding on the petitioner and,
therefore, there was no need to call panch witnesses for cross-examination of the
witnesses. Therefore, so far as the appellants whose statements were recorded
under Section 108 of the said Act and who had clearly confessed to their
involvement, there would be no violation of the principles of natural justice as the
witnesses were not required to be produced for cross-examination. Their
subsequent retraction did not entitle them to claim cross-examination of the
witnesses on the aspects which were confessed by them. In the present case, even
after the retraction, there have been statements, recorded on 3-1-1993 amounting to
confessions.
52. We note from records that a faint plea of seeking shelter under
Section 155 of the Customs Act, has also been canvassed by the
Departmental Officers. However, having arrived at the irresistible
conclusion about the complicity of the said officers in the entire matter.
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
WE find that no room exists for the officers to seek such an umbrella of
protection. Also we note that the officers were put to sufficient notice
and extended all fair play and natural justice during the course of
enquiry/adjudication. This plea therefore is clearly unacceptable and
dismissed.
53. Seeking Cross Examination without indicating specific reasons, is
just not admissible, as held in a slew of cases. Thus:
I. In the case of Fortune Impex Vs. Commissioner of Customs, Calcutta
[2001(138) E.L.T.556 (Tri. -Kolkata)], Hon'ble Tribunal observed at Para 12 that:
―...it is not required that in each and every case, cross-examination should
necessarily be allowed. There is no absolute right of cross-examination provided in
the Customs Act. The Advocate had given a list of 26 persons for cross-
examination without indicating the specific reasons for cross-examining the...it
cannot be said that there was violation of Principles of Natural Justice by not
allowing the cross-examination of the persons sought by him.‖ This view taken by
the Tribunal has been affirmed by Hon'ble Supreme Court - 2004 (164) E.L.T. 4
(S.C.) & 2004 (167) E.L.T.A. 134 (S.C.).
II. Hon'ble CESTAT Kolkata in its decision in Dipu Das v/s Commissioner of
Customs Kolkata reported as 2010(261) ELT 408 (Tri-Del), has held that;
xxxxxxxxxxxxxxxxxxxxxxxxxxxx
―...............In adjudication proceedings, cross-examination cannot be claimed as
a matter of right on mere asking for it, without furnishing reasons for the same‖.
(iii) In the case of A L Jalaluddin v Deputy Director of Enforcement
Directorate, Cheenai (2010 (261) ELT 84 Mad), the hon'ble High Court found no
wrong in the rejection of the request for Cross Examination of the witnesses of the
said case did not merely rest on the statement recorded.
We are clear and of the view that a categoric confesstion independent of threat or
inducement is a valid piece of evidence and acceptable. Moreover, its reliability
gets reinforced when corroborated by material independent evidence on record.
(iv) The hon'ble Delhi High Court in the case of S M Ojha V Commissioner of
Customs (2016 (331) ELT 33 Del in para 21 of its order held that
".............. strict requirements of evidence Act, 1872, would not apply to
enquiries and investigations undertaken by the DRI or the Customs
department. "It held that as long as the said statements were not given by
way of threat or co-ercion its voluntary nature would remain impeached
and were the statement made, to be retracted, the onus would lie on the
maker of the statement to prove such coercion, threat or duress.
49
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
54. Section 138B(2) or any other provisions of the Customs Act do not
provide for such explicit arrangement for an examination-in-chief, cross
examination and re-examination. The instant case is not merely based
on the statements of any other person, but also the statements of the
noticees themselves, who have sought cross-examination of each other
without specifying any stated purpose or even alluding to their of being
involuntary and co-erced. In view of the legal position as detailed
above, the elaborate discussions in the matter, the factual position on
record, we hold that cross-examination sought by the noticees was
without any merit and a ploy to delay and digress the adjudication
proceedings. In the aforesaid view of the matter, denial of cross-
examination cannot be considered as violative of Principles of Natural
Justice. Moreover, in the instant matter, irrefutable evidence exists as a
result of overseas enquiry. The noticees have not been able to establish
that their statement(s) were not voluntary and were given under duress
or coercion or are factually wrong or the authorities harboured any
malice towards the appellant noticees. In fact the oral admissions and
enquiry results get buttressed by the description as made at the time of
import, the time stamps of out of charge and physical clearance of
goods as evidenced by gate passes, the handwriting verification and a
host of such other evidence gathered by the investigators. Further in
view of the laws laid down in the referred judicial pronouncements, it is
obvious that cross-examination indeed could not be taken as a matter
of right by the noticees. In the present matter, the modus, role play,
misdeclaration etc. are all well brought out rendering the deliberate
infringement in law obvious and crystal clear, hence we hold that the
denial of unspecified request for cross examination causes no prejudice
to the appellants in determining the final fate of the notice issued. As no
cogent reason(s) have been adduced to seek and justify cross-
examination, not affording cross-examination to the noticees, does not
vitiate the proceedings.
55. We note from records that a faint plea of seeking shelter under
Sec. 155 of the Customs Act, has also been canvassed by the
Departmental officers. However, having arrived at the irresistible
50
Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
conclusion about the complicity of the said officers in the entire matter,
we find that no room exists for the officers to seek such an umbrella of
protection. Also, we note that the officers were put to sufficient notice
and extended all fair play and natural justice during the course of
enquiry/adjudication. Moreover, in view of our discussions supra, least
of all, the action on part of the accused departmental officers, can in no
way be construed as action taken in good faith. Rather the acts of the
appellants are full of devious designs and malafides, wreaking of a
sinister plot and fraud perpetuated to defraud revenue. This plea
therefore is clearly unacceptable and dismissed.
56. Further in view of what is noted in para 42 above, it cannot be
construed that the sub-ordinate officers i.e. Shed Appraiser and the
Examining Officer had no role in the matter. No assessment can be said
to be completed in the absence of formal and express reports furnished
by the said officers. The Examiner cannot be held as to be not
responsible about the discrepancy in declaration furnished which is
violative of the product imported. On the contrary, he is one such
officer who has access to the imported goods in their physical form.
While giving manual Out of Charge, though at the behest of the group
DC Navneet Kumar, the Shed Examiner cannot be absolved of in the
matter as he not only failed to the appreciate illegality of such orders as
issued by the Deputy Commissioner but was an active and willing
collusionist. He was aware of the wrong doing which were admitted by
both Shri Vikky Kumar and Pranabnandbala in their statements. Since
both of them had crucial role to play in the examination and ultimate
issue of Out of Charge Orders, the Shed Appraiser and Docks Examiner
cannot be held to be innocent victims. Their role and actions have also
been corroborated by Nasiruddin himself, in as much as it is on record
that Navneet Kumar had assured Nasiruddin about the clearance of mis-
declared cargo, inter alia pointing out that both Vikky Kumar and
Pranabnandbala posted at import shed of ACC Kolkata were his trusted
officers and would pose no problem in the clearance of mis-declared
goods. The plea of RMS facilitation raised in the matter by the
appellants also fails completely in view of the fact that even with
respect to such imports consignments Out of Charge was initially given
manually and later entered into the EDI system after actual physical
delivery of the consignments. It cannot be disputed that in terms of the
Appraising Manual, apart from the group I/C Dy/Asstt. Commr. even
the Examiner and Appraiser cannot cast aside truthfulness of the
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
declaration made by the importer, on all parameters, as required to be
done by the Examination Order. However, a manipulated examination
order would be of no avail to establish bonafide credentials of the
transaction. Thus in short, the Appraising Officer would keep a check on
the valuation, description and classification of the goods, while the
Examining Officer would identify the goods in accordance with such
directions from the Appraising group.
57. The onus of responsibility therefore, cannot be shed off by the
officers concerned. It is thus evident that the three officers, together,
have acted in a very casual manner, having disregarded completely the
guidelines and instructions issued by the Board. They have actively
acted and assisted the dubious designs of the unscrupulous importers
and other members of the syndicate. Their role in perpetuating the
massive fraud cannot be considered lightly. In fact they have facilitated
illegal clearance by resorting to examination/inspection of only the
fraudulently selected packages for examination, flouting norms for
assessment of imported goods and grant of their out of charge, in the
process violating and/or circumventing all known legal provisions, in all
ways more than one, thereby subverting and undermining the
legitimate process.
58. The Hon'ble Calcutta High Court in the case of Vikash Kumar Vs
Revenue and Others 2018 (2) TMI 1478 Calcutta High Court had
held that Show Cause Notice issued to the Customs officer in the matter
was in his capacity as ―any person‖. Deriving a cue therefrom, it can be
nobody's case that the three departmental officers herein cannot be
issued notice under the Customs Act, and subjected to penal provisions
for their contumacious conduct and involvement in the matter.
59. The only question now as concerns the appellant is with regard to
the quantum of penalties imposed on them. We find from records that
each of the four appellants were levied with varying amounts of penalty
both under Section 112 a (ii) and Section 114AA. The two sections read
as under:-
Section 112. Penalty for improper importation of goods, etc.--
Any person, -
(a) who, in relation to any goods, does or omits to do any act which act or
omission would render such goods liable to confiscation under section 111, or
abets the doing or omission of such an act, or
(b) who acquires possession of or is in any way concerned in carrying, removing,
depositing, harbouring, keeping, concealing, selling or purchasing, or in any other
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
manner dealing with any goods which he knows or has reason to believe are liable
to confiscation under section 111,
shall be liable, -
(i)......................
[(ii) in the case of dutiable goods, other than prohibited goods, subject to the
provisions of section 114A, to a penalty not exceeding ten per cent. of the duty
sought to be evaded or five thousand rupees, whichever is higher :
(iii)..................
(iv)...........................
(v).......................
Provided that where such duty as determined under sub-section (8) of section 28
and the interest payable thereon under section 28AA is paid within thirty days from
the date of communication of the order of the proper officer determining such duty,
the amount of penalty liable to be paid by such person under this section shall be
twenty-five per cent. of the penalty so determined;]
SECTION 114AA. Penalty for use of false and incorrect material. - If a person
knowingly or intentionally makes, signs or uses, or causes to be made, signed or used,
any declaration, statement or document which is false or incorrect in any material
particular, in the transaction of any business for the purposes of this Act, shall be liable to
a penalty not exceeding five times the value of goods.
60. Thus, as can be seen from the above a person renders himself
liable to penal consequences for doing or failing to do an act that would
render the goods liable to confiscation. Two things be noted here-(i) the
law uses the expression ―any person,‖ and (ii) the imported goods
should be ―liable to confiscation‖. Thus actual confiscation of goods has
no bearing for levy of penalty under the provision. The quantum of
penalty however is actually governed by the various sub classes (i)-(v)
depending upon the nature of goods whether prohibited, dutiable etc.
The adjudicating authority has taken recourse to sub clause (ii) that
concerns dutiable goods and going by the exporters declaration or the
nature of imports, it is nobody's case that the impugned goods were not
dutiable. As concerns imposition of penalty under section 114AA, the
same comes into operation for intentional making, signing or usage, of
material i.e. false or incorrect. The upper cap of its quantum is however
restricted therein.
61. The liability to confiscability of the impugned goods is not in doubt
and the lower authority held them liable to confiscability under various
provisions of Section 111 of the Act. The said sub sections are extracted
below:-
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Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025
SECTION 111. Confiscation of improperly imported goods, etc. --
The following goods brought from a place outside India shall be liable to confiscation :
--
(a)........................................
(b)..............................
(f) any dutiable or prohibited goods required to be mentioned under the regulations in an [arrival manifest, import manifest] or import report which are not so mentioned;
(i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof;
(l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77;
(m) [any goods which do not correspond in respect of value or in any other particular] with the entry made under this Act or in the case of baggage with the declaration made under section 77 [in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54];
(q)........................
As is clear from a reading of the legal provisions in the backdrop of the discussions, there can be no offence to the confiscability of the said goods under the aforesaid provisions. Thus the four appellants have rendered themselves liable to penal consequences. Moreover, the clear conspiracy hatched with ulterior design and repeated history of their actions by way of multiple acts plus the facts of thoughtfully crafting out their strategy to the last mile i.e. till when the goods exit the customs shores and control, besides the fact of each of them acting in league like a team, with the role of a captain being played by Dy. Commissioner Navneet Kumar, we are of the view that it being not only a case of grave revenue loss but also that of mistrust, the matter calls for no leniency. A popular vermacular saying ―" ‖, loosely translating to "The protector become the devourer", would certainly cause all good governance to fail, no matter what the checks and balances be. Moreover in case of an economic act, such actions would 54 Customs Appeal Nos. 75126, 75127, 75128 & 75381 of 2025 impinge the very foundation of even a very sound system, moreso when it is a job of a few insiders. Considered in the realm, we are of the conscious mind that the conduct of the three departmental officers, does not call their case to be viewed with a ―leniency-prism‖. Nonetheless, looking into the entire factual matrix and circumstances of the case and the role played by each of the appellants, we feel that the ends of justice shall be met with the following modifications in the quantum of penalties as imposed by the lower authority.
SI No. Appellant's Penalty as per Penalty as now levied
Name impugned order (Rs.) (Rs.)
Sec. Sec. Sec. Sec.114AA
112a(ii) 114AA 112a(ii)
1. Navneet 2,00,000 4,00,000 1,00,000 2,50,000
Kumar, Dy.
Commissioner
2. Sajal Das 2,00,000 4,00,000 1,00,000 2,50,000
3. Vikki Kumar, 1,00,000 2,00,000 50,000 50,000
Apraiser
4. Pranabnanb 1,00,000 2,00,000 50,000 50,000
Bala,
Examiner
62. But for the aforesaid change in the quantum of penalties imposed on the appellants herein (para 61), the order of the lower authority is maintained qua the appellants herein.
(Pronounced in the open court on 02.07.2025) Sd/-
(R. Muralidhar) Member (Judicial) Sd/-
(Rajeev Tandon) Member (Technical) pooja