Custom, Excise & Service Tax Tribunal
Shri Sajal Das vs -Kolkata(Admn Airport) on 23 June, 2025
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO. 1
Customs Appeal No. 75623 of 2022
(Arising out of Order-in-Original No. KOL/CUS/Pr.COMMISSIONER/AP/ADMN/17/2022
dated 27.06.2022 passed by the Principal Commissioner of Customs (Airport &
A.C.C.), Custom House, 15/1, Strand Road, Kolkata - 700 001)
Shri Sajal Das : Appellant
S/o. Shri Satya Ranjan Das,
Residing at: 68/38, Amarpally, Jessore Road,
P.O.: Motijheel, P.S.: Dum Dum, District: North 24 Parganas,
Kolkata - 700 074
VERSUS
Principal Commissioner of Customs : Respondent
Airport & Air Cargo Complex Commissionerate,
Custom House, 15/1, Strand Road,
Kolkata - 700 001
APPEARANCE:
Dr. S.K. Mohapatra, Advocate, for the Appellant
Shri Faiz Ahmed, Authorized Representative, for the Respondent
CORAM:
HON'BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL)
FINAL ORDER NO. 76630 / 2025
DATE OF HEARING / DECISION: 23.06.2025
ORDER:
The instant appeal has been filed against the Order-in-Original No. KOL/CUS/ Pr.
COMMISSIONER/AP/ADMN/17/2022 dated 27.06.2022, passed by the Principal Commissioner of Customs, Airport & Air Cargo Complex Commissionerate, Custom House, Kolkata whereby penalties of Rs. 3 lakh each have been imposed upon the appellant under Section 112(a)(i),112(b)(i) and 114AA of the Customs Act, 1962.
Page 2 of 11Appeal No.: C/75623/2022-SM
2. The brief facts of the case are that on the basis of specific information, the Directorate of Revenue Intelligence (DRI), Kolkata Zonal Unit, intercepted one consignment imported vide Bill of Entry No. 9941310 dated 02.06.2017 filed by the importer M/s Pasific Enterprises, declared as "Gents Chappal"
having declared assessable value of Rs.1,28,953/- which was assessed to duty amounting to Rs.50,500/- , which had been paid in the system on 05.06.2017 by e-payment. The goods were examined on 05.06.2017 and examination report was as follows:
opened 5% for appraisement, description correct, found in order as per invoice which was signed by the EO. Out Of Charge (OOC) stamp indicated that OOC in respect of the goods were given by the Appraiser on 05.06.2017.
2.1. On interception and subsequent Panchnama drawn by DRI on 05.06.2017 the goods were found to constitute 518400 sticks of Gudang Garam Cigarettes (Indonesia) in 36 Cartons, 80,000 sticks Dunhill Switch Cigarettes (Switzerland) in 4 Cartons and 380 pairs of Plastic Slippers in 10 Cartons, with total ascertained value of Rs. 61,82,000/-. The goods against the Bill of Entry were seized under Section 110 of the Customs Act 1962.
2.2. A Show Cause Notice dated 01.12.2017 was issued under Section 124 of the Customs Act, 1962, proposing confiscation of the impugned goods and penalties under Sections 112(a), 112(b) and 114AA, inter alia, on the appellant.
2.3. The matter was adjudicated vide the impugned order, whereby the ld. adjudicating authority has imposed penalties of Rs.3,00,000/- each under Sections 112(a)(i), 112(b)(i) and 114AA of the Act.Page 3 of 11
Appeal No.: C/75623/2022-SM
3. The Ld. Counsel appearing on behalf of the appellant submits that the impugned Show Cause Notice is erroneous on the facts and in law, since the appellant did not perform any work in relation to the importation of the impugned consignments. He highlighted the fact that the impugned order reveals that a nexus was created among Mayur Mehta, a Customs Broker, his employee Monika Vora, Navneet Kumar (Deputy Commissioner) and the Customs Broker, M/s. Sadguru Forwarders Pvt. Ltd. He also submits in this regard that the appellant has denied to have any knowledge about their modus operandi. It is his further submission that for lack of office set up in the Air Cargo Complex by most of the CBs, his CB Firm used to extend co-operation in sharing office apparatus, machinery and equipment purely out of courtesy and in the process, he had allowed his computer to be used by Nasiruddin purely under a bona fide belief. He further stated that the said Nasiruddin was picked up by Deputy Commissioner Navneet Kumar and not by him and the allegation that the appellant had introduced Nasiruddin with a number of brokers/importers for clearance of the impugned consignments is therefore, incorrect.
3.1. It is also the submission on behalf of the appellant that M/s. Nirmala Bala Trading Co. is not a firm of the appellant; the appellant had no concern with the business of M/s. Nirmala Bala Trading Co. and he is not aware nor is he supposed to be aware as to the details of the transactions made by the firm with other importers; that the alleged amount was paid with respect to which he has no knowledge. Therefore, the appellant contends that the transaction between M/s. Pacific Enterprise and M/s. Nirmala Bala Trading cannot be attributed to the appellant for Page 4 of 11 Appeal No.: C/75623/2022-SM imposition of penalty.
3.2. Regarding the penalties imposed on him, the Ld. Counsel for the appellant submitted that Section 112(a) of the Act has been wrongly invoked against him as neither he did nor did he omit to do any act which rendered the subject goods liable to confiscation nor did he abet the doing or omission of any such act; that the impugned order does not reveal any such act of abetment on his part save and except insinuation; that Section 112(b) of the Act has been wrongly invoked against him in as much as neither he acquired possession nor was in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any manner dealing with subject goods. It is also contended that the ingredients for invocation of Section 114AA do not exist in this case and hence no penalty imposable under this Section.
3.3. The Ld. Counsel for the appellant further pointed out that in a case where penalty had been imposed under Sections 112(a), 112(b) and 114AA ibid. on the appellant, the Division Bench of this Tribunal has set aside the penalty imposed on the appellant, vide Final Order No. 76182 of 2025 dated 02.05.2025.
3.4. Therefore, the appellant submits that Section 112(a)(i), 112(b)(i) and 114AA of the Act had no application against him in the facts and circumstances of the case and accordingly, prays for setting aside the penalties imposed on him.
Page 5 of 11Appeal No.: C/75623/2022-SM
4. The Ld. Authorized Representative of the Revenue submits that the appellant had close nexus with Mayur Mehta, a Customs Broker, his employee Monika Vora, Navneet Kumar (Deputy Commissioner) and the Customs Broker, i.e., M/s. Sadguru Forwarders Pvt. Ltd.; that they together operated as a syndicate and facilitated clearance of misdeclared/undervalued goods. In view of these submissions, the Ld. Authorized Representative for the Revenue contends that the penalties have been rightly imposed on the appellant.
5. Heard both sides and perused the appeal records.
6. I find that in this case, the one consignment was imported vide Bill of Entry No. 9941310 dated 02.06.2017 filed by the importer M/s Pasific Enterprises, declaring the goods as "Gents Chappal". On examination, the goods were found to constitute 518400 sticks of Gudang Garam Cigarettes (Indonesia) in 36 Cartons, 80,000 sticks Dunhill Switch Cigarettes (Switzerland) in 4 Cartons and 380 pairs of Plastic Slippers in 10 Cartons with total ascertained value of Rs. 61,82,000/-. Thus, it was alleged that the appellant has facilitated clearance of the above misdeclared consignment. Accordingly, the goods were confiscated and penalties were imposed on the appellant herein under Sections 112(a), 112(b) and 114AA of the Customs Act, 1962.
6.1. The gamut of allegations against the appellant is summarized in paragraph No. 13.5.2. of the impugned Show Cause Notice which reads as follows:
"13.5.2 Shri Sajal Das was also instrumental in facilitating the clearance of such goods in as much as he at the instance of Navneet Kumar, searched for a person who could handle the job of clearance of the Page 6 of 11 Appeal No.: C/75623/2022-SM misdeclared consignments and in the process located Nasiruddin. He introduced Nasiruddin with a number of such importers/brokers who intended to bring in the misdeclared goods in convenience with the DC Navneet Kumar. He also allowed his office machinery to be used by Shri Nasiruddin to receive the mails from the importer and especially from Late Mayur Mehta and Ms. Swati Vora @ Monika Vora wherefrom it was crystal clear that the goods were grossly misdeclared and also facilitated the clearance of such goods through Customs. In the statement recorded under section 108 of the Customs Act 1962, Sri Sajal Das, denied of having any knowledge of the smuggling, however, from the bank statement of M/s. Pasific Enterprises it was found that on 20.05.2017, an amount of Rs.5,00,000 was paid by M/s. Pasific Enterprises to M/s. Nirmala Bala Trading, the firm related to one Sri. Sajal Das, which can only prove his nexus. Sri. Sajal Das being a man in the business of Customs Broker, would know quite well that he was going to facilitate a conspiracy to bring in misdeclared/contraband goods which are liable to confiscation under the Customs Act, 1962 and thereby he rendered himself liable for penalty under Customs Act, 1962. It further appears that, Sri. Sajal Das knowingly and intentionally used or caused to be made fake/forge documents which do not correspond to the material imported by Pasific Enterprises. Therefore, it appears that Shri Sajal Das had rendered himself liable for penal action under Section 112(a), and Section 112(b) of the Customs Act, 1962 for his act of omission and commission."
6.2. From the above, I find that although the allegation of the Department is that the appellant facilitated the clearance of the mis declared goods, there is no evidence on record to substantiate this allegation. It has also been alleged that the appellant has allowed Nasiruddin to use their office and computer. In this regard, I find that allowing usage of office premises and computer cannot be construed as connivance in the alleged offence. I also take note of the appellant's submission in this regard that he has no objection with regard to the confiscation of the goods and the order for destruction of the cigarettes Page 7 of 11 Appeal No.: C/75623/2022-SM seized. I also find that there is no evidence available on record to establish that the appellant is the owner of the goods or he imported the goods or he was in any way connected with subject goods.
6.3. Regarding the penalties imposed on the appellant, I find that the investigation has not brought in any evidence against the appellant to establish that the conditions laid down for invoking the provisions of Section 112 of the Customs Act, 1962 have been satisfied in this case. I also find that no evidence available on record to establish that the appellant had contravened or violated any of the provisions of the Customs Act. I find that the ld. adjudicating authority has arrived at a speculative finding that the appellant was providing necessary assistance in the clearance of mis-declared and contraband goods, without any evidence. Although it has been alleged that the appellant has conspired with the importer to bring in misdeclared/contraband goods which are liable to confiscation under the Customs Act,1962, I do not find any evidence to establish that the conditions laid down for invoking the provisions of Section 114AA of the Customs Act, 1962 have been satisfied in this case. Thus, I find that penalties cannot be imposed on the appellant under Sections 112 (a), 112(b) and 114AA of the Customs Act, 1962.
6.4. In this regard, I take note of the fact that this Tribunal, in an identical set of facts where the adjudicating authority had imposed penalties under Section 112(a) and 112(b) and 114AA on the appellant, vide Final Order No. 76182 of 2025 dated 02.05.2025 in Customs Appeal No. 75621 of 2022, has set aside the same. For ready reference, the Page 8 of 11 Appeal No.: C/75623/2022-SM relevant findings of the Tribunal in the said case are reproduced below:
"6.2. From the allegations in the Notice, we observe that the allegation against the appellant is that he has introduced the alleged Custom Broker Nasir Uddin to number of importers. The allegation in the Notice reveals that DC Shri. Navneet Kumar connived with various brokers to misdeclare and import the said goods. We observe that there is no evidence brought on record to substantiate the allegation that the appellant has introduced the customs brokers to the DC Shri. Navneet Kumar. Even if it is accepted that the appellant has introduced some customs brokers to the DC, it cannot automatically lead to the allegation that the appellant has connived to mis declare the goods imported. Thus, we observe that the findings in the impugned order by the Ld. adjudicating authority is only on the basis of assumptions and presumptions without any evidence to support it.
6.3. Another evidence adduced in the notice is the alleged deposit of Rs. 5,00,000/- byPasific Enterprises to the account of Nirmala BalaTrading firm related to the appellant. From the records, we find that M/s. Nirmala Bala Trading Co. is a proprietorship firm of Chandan Das, who is the brother of the appellant. The said firm is in the business of dealing in DEPB scrips and has no relation with the appellant's business. The appellant is the sole proprietor of M/s. K.C. Das & Co. and a partner of the firm Indo Friends Agency, both independent Customs Brokers and were registered, inter alia, at Kolkata Port and Airport. We observe that none of them were involved with the subject imports/case and no payment has been made to the said Firms. It is not known as to how the adjudicating authority has linked the deposit of Rs. 5,00,000/- byPasific Enterprises to the account of Nirmala BalaTrading to the appellant. Thus, we observe this findings in the impugned order by the Ld. adjudicating authority is also on the basis of assumptions and presumptions without any evidence to support it.
6.4. From the above, we observe that the appellant has been implicated in the matter by selective reading of the alleged statements purportedly made by a few named persons under Page 9 of 11 Appeal No.: C/75623/2022-SM Section 108 of the Act. However, we find that, none of the observations in the said statements made against the appellant are corroborated by any other independent materials on record. The said persons have also not been allowed to be cross-examined in spite of specific request made by the appellant. As held by the Hon'ble Courts and this Tribunal, such statements are relevant and admissible only when examined by the adjudicating authority under Section 138B of the Customs Act, which has not been done in the instant case. Hence, we hold that such statements cannot be relied upon against the appellant. In support of this view, we rely on the decision of the Hon'ble Apex Court in the case of Commissioner of Customs Vs. Junaid Kudia 2024 (16) CENTAX 504 (SC) - affirming Junaid Kudia Vs. CC [2024 (16) CENTAX 503 (T), wherein it has been held as under:
6.5. Thus, by relying on the decision cited supra, we observe that the said statements cannot be relied upon against the appellant, as there is no corroborative evidence to substantiate the allegations.
6.6. We observe that Section 112(a)(i) of the Act provides for imposition of penalty for improper importation of goods upon any person 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 of the Act. In the present case, we observe that the appellant has not filed the Bills of Entry for importation of the gods.
We also find that the appellant had no role in the importation, filing of Bills of Entry, documentation, examination of the goods or any work whatsoever related to the import and clearance of any of the consignments of the importers. Thus, we hold that the appellant has not fulfilled any of the conditions required for imposition of penalty under Section 112(a) (i) of the Customs Act. 1962 and hence, we hold that penalty imposed on the appellant under section 112(a) (i) is not sustainable and hence we set aside the same.
6.7. Section 112(b) of the Act provides for imposition of penalty for importation of goods by any person who acquires possession of or is in any way concerned in carrying, removing, depositing, harboring, keeping, concealing, selling or purchasing, or in any other manner dealing with any Page 10 of 11 Appeal No.: C/75623/2022-SM goods, which he knows or has reason to believe are liable to confiscation under Section 111 of the Act. We observe that there is no material evidence available on record to establish that the appellant is concerned with any of the acts mentioned in the said section, which make the imported goods liable to confiscation under Section 111 of the Act. The penalty under this section cannot be imposed on the basis of assumptions and presumptions. Accordingly, we hold that the appellant has not fulfilled any of the conditions required for imposition of penalty under Section 112(b) of the Customs Act. 1962 and hence, we hold that penalty imposed on the appellant under section 112(b) is not sustainable and hence we set aside the same.
6.8. Section 114AA of the Act provides for penalty upon a person if he 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 the Act. We find that the appellant had no role in the importation, filing of Bills of Entry, documentation, examination of the goods or any work whatsoever related to the import and clearance of any of the consignments of Lotus Impex (India) and Ambey Telecom. We observe that there is no material evidence available on record to establish that the appellant is concerned with any of the acts mentioned in the said section. We observe that the penalty under this section cannot be imposed on the basis of assumptions and presumptions. Accordingly, we hold that the appellant has not fulfilled any of the conditions required for imposition of penalty under Section 114AA of the Customs Act. 1962 and hence, we hold that penalty imposed on the appellant under section 114AA is not sustainable and hence we set aside the same.
7. In view of the above discussions, we set aside the penalties imposed on the appellant Shri. Sajal Das under Sections 112(a)(i), 112(b) and 114AA of the Customs Act, 1962' in the impugned order . Thus, the appeal filed by the appellant is allowed with consequential relief, if any as per law."
Page 11 of 11Appeal No.: C/75623/2022-SM
7. In view of the above findings and by relying on the decision of this Tribunal reproduced above, I hold that the penalties imposed on the appellant in the present case under the Sections 112(a), 112(b) and 114AA of the Customs Act, 1962 are not sustainable and hence the same are set aside.
8. Consequently, I set aside the penalties of Rs. 3 lakhs each imposed on the appellant under the Sections 112(a)(i), 112(b)(i) and 114AA of the Customs Act, 1962 and allow the appeal, with consequential relief, if any, as per law.
(Operative part of the order was pronounced in open court) Sd/-
(K. ANPAZHAKAN) MEMBER (TECHNICAL) Sdd