Custom, Excise & Service Tax Tribunal
Shri Rakesh Arora vs Cc, New Delhi on 29 June, 2009
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
COURT NO. II
Custom Appeal No. 103 of 2006-Cust. Br.
(Arising out of Order-in-Original No. 95/2005 dated 18.11.2005 passed by the Commissioner of Customs, New Delhi)
Shri Rakesh Arora Appellant
Vs.
CC, New Delhi Respondent
Custom Appeal No. 113 of 2006-Cust. Br.
(Arising out of Order-in-Original No. 95/2005 dated 18.11.2005 passed by the Commissioner of Customs, New Delhi)
Shri Ashok Kumar Jha Appellant
Vs.
CC, New Delhi Respondent
Appearance
Appeared for Appellant : Shri Hemant Bajaj & Sh. Prem Ranjan,
Advocates
Appeared for Respondent: Shri Sansar Chand, DR
Date of Hearing: 29.6.2009
CORAM: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER
HONBLE MR. RAKESH KUMAR, TECHNICAL MEMBER
Order No.dated.
Per D.N. Panda :
Ld. Counsel Shri Hemant Bajaj submits that the Appellant Shri Rakesh Arora was not the owner of M/s A.U. International but he has been penalised by Rs.20.00 lakhs under Section 112 of Customs Act 1962. Merely relying on the statement of Shri Ajay Uppal and Shri Ashok Kumar Jha, he should not have been implicated. He had never involved himself nor made any arrangement for mis-declaration of the goods and nothing prejudiced interest to Revenue. Accordingly, penalty levied may be waived since the Appellant was asked to make pre-deposit of Rupees three lakhs in the course of stay hearing.
2. Ld. Counsel Shri Prem Ranjan submits that his client Shri Ashok Kumar Jha has no connection with the import nor concealment of the impugned goods was made under the cover of synthetic rubber SBR-1502. He had also not caused prejudice to the interest of Revenue. But he was unreasonably and unjustly penalised to the extent of Rs. 5.00 lakhs.
3. Ld. DR Shri Sansar Chand appearing for Revenue brings out the material facts relating to concealment of the offending goods under a very few quantity of synthetic rubber of SBR-1502 imported. Offending goods of different descriptions were brought in the imported consignments and there was mis-declaration. When the offending goods were deliberately imported by M/s A.U. international, it is merely a pretence of the Appellant Shri Rakesh Arora that he was not connected with M/s A.U. International and this was to escape the charge against him. His active involvement as proprietor of that concern was established on record from various evidence gathered in the course of investigation. Oral evidence of Shri Ajay Uppal recorded on 4th August, 2003 and subsequent evidence of Shri Ashok Kumar Jha followed by the statement of Shri Ajay Kumar Jha who was introducer of bank account proved ill will of the Appellants Shri Rakesh Arora. When the goods in container themselves proved by their identification and nature suggesting that there was mis-declaration in the import and some questionable goods were concealed under declared goods, Appellants were bound to face penalty. Whole import therefore called for confiscation, the goods were also unclaimed. Intimate and illicit connection of Shri Rakesh Arora and Shri Ashok Kumar Jha was proved they were intimately connected with the impugned goods for importation. Ld. DR fully supported order of Authority below. According to him that it is also a fact on record that Shri Rakesh Arora dis-appeared and failed to appear before the Custom Authorities to cooperate in investigation only after a direction by the Magisterial Court, he caused his appearance. Therefore there should be no leniency to these Appellants when they were found with master mind to deceit Revenue.
4. Heard both sides and perused the record.
5. At page 43 of the Order-in-Original, ld. Commissioner has brought out that Bill of Entry No. 105930 dated 25th June, 03 has given rise to the cause of action against both the Appellants, there was importation of small quantity of synthetic rubber SBR 1502. On 31st July 2003, the DRI Authorities examined the container bearing No. MSKU 8059340 and MAEU 8205935 containing the impugned goods along with synthetic rubber. The examination revealed that 6,51,610 pcs. of bearings, 414 pairs of shoes and 2 Horse Lane Premium gold Plated dinner sets were concealed by synthetic rubber and such goods did not find place in the Bill of Entry filed by the Appellant. Such a fact was established in Adjudication. Investigation had gathered oral evidence recorded from various persons. Oral evidence of Shri Ajay Uppal recorded on 4th Aug. 2003, in no uncertain terms proved that there was concealment of the impugned goods by a small quantity of synthetic rubber which was the goods stated to have been imported through Bill of Entry submitted. He disclaimed the goods. That brought the Appellant Shri Rakesh Arora to charges noticing that he was a person behind above import. Shri Rakesh Arora failed to prove his innocence and failed to dissociate himself leading evidence to prove his innocence. He made deliberate attempt to escape from the course of investigation. This is also proved on record since Revenue could succeed to enforce his attendance through the order passed by a Magisterial Court. Oral evidence of Shri Ajay Uppal showed that for a small consideration of Rs. 6000/- P.M., he was used as benamidar for the Appellant. That remained uncontroverted. Shri Ajay Uppal also proved the concealed goods.
6. When the Authorities further proceeded to examine how the transactions were dealt. Authorities also found that a bank account in the name of above concern was opened at the instance of Shri Rakesh Arora consequent upon introduction by Shri Ajay Kartik for opening such account in the Corporation Bank at Noida. This clearly proved that had Shri Rakesh Arora not been concerned or connected with M/s A.U. international, he would not have opened the Bank Account. All these evidence establish that Shri Ajay Uppal was certainly a benamidar and for a remuneration of Rs. 6000/- P.M. he was merely a name lender for the undisclosed principal Shri Rakesh Arora. There was nothing contradictory evidence brought to record by Shri Rakesh Arora for his defence.
7. The department had also considered evidence of Shri Ashok Kumar Jha. Shri Rakesh Arora failed to discard that evidence to get immunity from penalty. Shri Jha stated that M/s A.U. International was a brain child of Shri Rakesh Arora. Also he stated that Shri Ajay Uppal was the conduit to deal under the name and style of M/s A.U. International. Shri Rakesh Arora was real owner of that concern. Entire material having been brought to record and nothing been controverted to dissociate, Shri Rakesh Arora from M/s A.U. International, the said Appellant is not entitled to any immunity under the law. Therefore penalty of Rs. 20.00 lakhs imposed by Authority below is confirmed against him.
8. So far as the involvement of Shri Ashok Kumar Jha is concerned, it appears that he had conscious knowledge about the activity of M/s A.U. International, Shri Rakesh Arora and Shri Ajay Uppal. Law never permits abettment of offence, Shri Ashok Kumar Jha has proved himself to be one of the agents of the malicious design against Revenue. His oral evidence was also against him proving his nexus to the offence. He was aware of the import documents given by Shri Ashok Arora. Therefore his involvement cannot be ignored. There is also no cogent evidence to rule out his active involvement with the entire chain deceitful import. Having no alternative to appreciate innocence of Shri Ajay Kumar Jha, penalty of Rs. 5.00 lakhs imposed by Authority below, on him, is also confirmed.
9. In the result, both Appeals are dismissed.
(Dictated & pronounced in open Court)
(D.N. PANDA)
JUDICIAL MEMBER
(RAKESH KUMAR)
TECHNICAL MEMBER
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RM