Custom, Excise & Service Tax Tribunal
Rupinder Singh Chaddha vs New Delhi(Icd Tkd) on 3 June, 2025
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CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH, COURT NO. 3
CUSTOMS APPEAL NO. 54017 OF 2018
[Arising out of Order-in-Original No. 24/2018/RNS/COMMAR./IMP/ICD/TKD
dated 31.8.2018 passed by the Commissioner of Customs(Import), Inland
Container Depot, Tughlakabad, New Delhi - 110020.]
Rupinder Singh Chaddha
A-2, Ground Floor,
....APPELLANT
36/52, Punjabi Bagh West,
New Delhi.
Vs.
Commissioner of Customs (Import)
Inland Container Depot,
.....RESPONDENT
Tughlakabad, New Delhi - 110020 With CUSTOMS APPEAL NO. 53368 OF 2018 [Arising out of Order-in-Original No. 24/2018/RNS/COMMAR./IMP/ICD/TKD dated 31.8.2018 passed by the Commissioner of Customs(Import), Inland Container Depot, Tughlakabad, New Delhi - 110020.] Sandeep Kumar Moria R/O 1400, Road No. 07, Wazir Nagar ....APPELLANT Kotla Mubarak Pur, New Delhi - 110003 Vs. Commissioner of Customs (Import) Inland Container Depot, Tughlakabad, New Delhi - 110020 .....RESPONDENT With CUSTOMS APPEAL NO. 54048 OF 2018 [Arising out of Order-in-Original No. 24/2018/RNS/COMMAR./IMP/ICD/TKD dated 31.8.2018 passed by the Commissioner of Customs(Import), Inland Container Deport, Tughlakabad, New Delhi - 110020.] Sh. Prahlad Singh, CHA, A-87, Mangal Bazar Road, Near Sangam Vihar Police State, ....APPELLANT Sangam Vihar, New Delhi - 110062 2 Vs. Commissioner of Customs (Import) Inland Container Deport, .....RESPONDENT Tughlakabad, New Delhi - 110020 And CUSTOMS APPEAL NO. 54049 OF 2018 [Arising out of Order-in-Original No. 24/2018/RNS/COMMAR./IMP/ICD/TKD dated 31.8.2018 passed by the Commissioner of Customs(Import), Inland Container Depot, Tughlakabad, New Delhi - 110020.] Sh. Dinesh Kumar Badopalia, A-7A/12FF, A- Block, RP Bagh, ....APPELLANT Delhi - 110009 Vs. Commissioner of Customs (Import) Inland Container Depot, .....RESPONDENT Tughlakabad, New Delhi - 110020 Appearance:
Present for the Appellant :Shri Kamal Jeet Singh, Advocate for the appellant in Appeal No. C/54017/2018, Shri Rajiv Tuli, Advocate in Custom Appeal No. 53368/2018, Shri G.S. Arora and Ms. Deeksha Kingram, Advocates in Appeals No. C/54048/2018 and C/54049/2018.
Present for the Respondent: Shri Rakesh Kumar, Authorised Representative.
CORAM:
HON'BLE MS. BINU TAMTA, MEMBER ( JUDICIAL ) HON'BLE MR. P.V. SUBBA RAO, MEMBER ( TECHNICAL ) FINAL ORDER NOS.50830-50833/2025 Date of Hearing : 24/04/2025 Date of Decision:03/06/2025 BINU TAMTA:
1. Four separate appeals have been filed by the above noted appellants, challenging the order-in-original 1 imposing penalty under Order-in-Original No. 24/2018/RNS/COMMAR./IMP/ICD/TKD dated 31.8.2018 1 3 Section 112(a) of the Customs Act, 1962 2 as the case related to smuggling of ozone depleting substance i e Refrigerant Gas (HCFC-22).
2. The Bill of Entry No.9865457 dated 16.04.2013 was filed by the importer, M/s. AMP Enterprises declaring the goods as 3000 cartons of A4 Copier paper with declared assessable value of Rs.13,30,776/-and after assessment on the basis of 10% examination by Customs at ICD,TKD, the consignment was cleared from Customs on payment of customs duty amounting to Rs.2,91,829/-. Based on the intelligence received by DRI that that M/s AMP Enterprises had imported restricted items by concealing them in 20 feet containers bearing no.CRXU 1551372 and GCUU 3009545, clearance of these containers was put on hold at ICD, TKD. On 20.04.2013, the said two containers were examined by DRI under a Panchama in the presence of representatives of Customs and CONCOR, Shri Gulshan Singh, proprietor of M/s AMP Enterprises, Shri Prahlad Singh CHA and Shri Dinesh Kumar Badpolia G- Card holder who filed the bill of entry. The examination of the containers led to the recovery of 1504 cylinders containing 13.6 kgs, each of refrigerant gas which were concealed behind 472 cartons of copier paper. The undeclared goods, refrigerant R-22 gas filled cylinders is a restricted item for import under the EXIM Policy and a specific license is required from the DGFT for its valid import. Since no documents were placed by the importer in support of legal importation of the refrigerant gas cylinders, the same were seized under Section 110 of the Act along with the copier paper which were used for concealment.
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Customs Act, 1962 4
3. The prominent persons whose statement was recorded under Section 108 of the Act was Shri Dinesh Kumar Badopalia, who filed the bill of entry in this case, Shri Gulshan Singh, proprietor of the importer firm, Shri Prahlad Singh CHA, Shri Rupinder Singh Chadha, Shri Manish Jalhotra, Shri Sandeep Kumar Moria, Shri Chandan Kumar Jain, Deputy Commissioner, Customs and further investigation was taken up. Show cause notice dated 17.04.2014 was issued in all to the above eight persons, including the importer firm, M/s. AMP Enterprises. On perusal of the statements recorded and further investigation leading to the CCTV footage and call detail records, the Adjudicating Authority passed the following order: -
"(1) I order for absolute confiscation of the seized goods, i.e., 1504 R-22 gas filled cylinders seized from two containers numbered CRXU1551372 and GCUU 3009545 which were not declared in the Bill of Entry No.9865457 dated 16.04.2013 and having market value of Rs.71.4 lakhs under Section 111(d),
(f), (1) & (m) of the Customs Act, 1962 read with Rules 4,5 & 12 of the Ozone Depleting Substances (Regulations) Rules, 2000 and Rule 29 of the Gas Cylinders Rules, l2004 and Section 11 of the Foreign Tirade ( Development & Regulation0 Act, 1992; (2) I also order for absolute confiscation of the seized Copier papers (3000 cartons of Copier Paper-
15000 reams) having market value of Rs.3,97,000/-
seized from both containers numbered CRXU 1551372 and GCUU 3009545 which were used for concealing the mis-declared goods, Section 111(m) and Section 118 read with Section 119 of the Customs Act;
(3) I imposed penalty of Rs.5,00,000 (Rupees Five lakh only) on Shri Gulshan Singh (Proprietor of M/s.A.M.P. Enterprises), Rs.10,00,000/- (Rupees Ten lakh only) on shri Manish Jalhotra, Rs.7,00,000 (Rupees Seven lakh only) on Shri Rupinder Singh Chaddha and Rs.3,00,000/- (Rupees Three lakh only) on Shri Sandeep Kumar Moria under Section 112(a) of the Customs Act;
(4) I imposed penalty of Rs.2,00,000/- (Rupees two lakh only), each on Shri Prahlad Singh, CHA and Shri Dinesh Kumar Badopalia under Section 112(a) of the Customs Act;
5(5) I drop the proceedings initiated against Shri Chandan Kumar Jain, Deputy Commissioner under the Customs Act,1962."
4. The appellants have filed separate appeals before this Tribunal. To complete the facts, against the dropping of penalty on Shri Chandan Kumar Jain, the Revenue had preferred an appeal before this Tribunal, which was rejected and further appeal to the High Court was withdrawn vide order dated 19.02.2024 on account of low tax effects.
5. We have heard Mr. Kamaljeet Singh, learned counsel for Shri Rupinder Singh Chadha, Shri Rajiv Tuli for Shri Sandeep Kumar Moria, Shri G.S. Arora for Shri Prahlad Singh CHA and Dinesh Kumar Badopalia, and Shri Rakesh Kumar, the learned authorised representative for the Revenue.
6. Since no appeal has been filed by M/s AMP Enterprises, its proprietor, Shri Gulshan Singh and Shri Manish Jalhotra, the order of confiscation of the declared and un-declared goods stands confirmed. The issue before us in these appeals is, therefore, limited to the levy of penalty imposed on the appellants herein, however, for the purpose of evaluating whether the penalty imposed is justified, it is necessary to briefly capture the facts leading to confiscation. It is an undisputed fact that the present case relates to import of restricted item R-22 Gas which was being smuggled under the garb of importing Photocopier paper. It is only when the goods were put under 100% examination, Refrigerant R-22 gas cylinders were detected. R-22 is a restricted item for import under EXIM Policy and under Ozone Depleting Substances (Regulation) Rules, 2000, actual user license from a country which is a 6 party to the Montréal Protocol is required. Also in terms of Rule 29 of Gas Cylinder Rules, 2004, no person is allowed to import any cylinder filled or intended to be filled with any compressed gas, except under and in accordance with the conditions of a license granted under the Rules. In view of the said provisions, the adjudicating authority considered that in the present case the importer did not have any such licenses for the import of R-22 Gas and also for the cylinders containing the said gas. It was, therefore, concluded that the importer had sought to import R-22 Gas without declaring the same and by concealing it behind the declared goods. Consequently, the goods were liable to confiscation under Section 111, sub-section (d), (f), (l)and
(m). The declared goods, i.e., Photocopier paper which were used to conceal the restricted item was also ordered to be confiscated under section 111(m) and 118 of the Act. We do not find any error in the findings recorded by the adjudicating authority regarding confiscation of the goods.
7. Once the goods are held liable for confiscation, penalty under Section 112 of the Act is imposable on the importer, the master kingpin and other associates.
8. To consider the issue of penalty on the appellants, it is necessary to appreciate their nexus in the clearance of the undeclared goods and the role played by each of them. The allegations made by the Revenue are that Shri Manish Jalhotra and Rupinder Singh Chaddha had entered into a conspiracy to smuggle restricted R-22 gas cylinders by concealing them behind the declared goods of photocopier paper in the name of dummy IEC holder, M/s AMP Enterprises. The bill of entry was 7 filed online by Shri Dinesh Kumar Badopalia from the office of CHA, Shri Prahlad Singh. In furtherance of the conspiracy to smuggle the restricted goods, Shri Manish Jalhotra, Shri Rupinder Singh Chaddha, Shri Dinesh Kumar Badopalia and Shri Sandeep Kumar Moria had a joint meeting at McDonald in Kamla Nagar, New Delhi on 12.04.2013. The details of the meeting came to light from the statement of Shri Dinesh Kumar Badopalia and which was further linked by the statements of other accused persons.
9. The statement of Dinesh Kumar was recorded on 19.04.2013, which was before the date of examination of the goods. The chronology of events which emerged from his statement is that :-
On 11.04.2013 he received a call from one Shri Vikas, who asked him to do the customs clearance work as he had imported paper from Malaysia and the container has reached ICD, TKD.
On 12.04.2013, the meeting took place at McDonald restaurant, Kamla Nagar, where three other persons were present, one of which was a Sardarji. Shri Dinesh Kumar, gave the description of other persons. As regards the clearance of the containers, he informed Shri Vikas that he would be charging Rs.12,000/- per container.
On 13.04.2013, Shri Gulshan proprietor of M/s AMP Enterprises contacted him and handed over the papers for the two containers, invoice/packinglist/certificate of region/copy of BL/delivery order/factory de-stuffing bond in original, and a copy of IEC.8
On 16.04.2013 Shri Dinesh Kumar filed the bill of entry for the two containers.
On 18.04.2013, Shri Dinesh Kumar received phone call from Shri Gulshan and also from Shri Vikas for speedy clearance of the consignments by taking the assistance of one Shri Rakesh at ICD, TKD. The containers were examined in the presence of Shri Chandra Bhan Patwal employee of Dinesh Kumar. On completion of the assessment, the goods were cleared on payment of duty.
On 20.04.2013, 100% examination was conducted by DRI, which led to the recovery of 1504 cylinders containing 13.6 kgs, each of refrigerant gas which were concealed behind 472 cartons of copier paper. Thereafter, he repeatedly got phone calls by international numbers from Shri Vikas enquiring about the containers.
10. In his statement recorded on 22.04.2013, Dinesh Kumar informed the DRI that his G-Card was not valid as license of Shri P.P. Dutta, Win Cdr. with whom he was working earlier, had been suspended/cancelled four years back, but he retained the G-Card and was using the same for entry to ICD, TKD. He also informed that he was the proprietor of M/s G. Commerce, a firm dealing in customs clearance since 2005.
11. Statement of Prahlad Singh, CHA was recorded on 22.04.2013, where he stated that he was having staff of 4-G Card holders, 2-H Card holders and one person working in his office. He also informed that Dinesh Kumar had introduced him about four importers and he had billed the expenditure to M/s G. Commerce owned by Shri Dinesh 9 Kumar, however, he had not enquired about the G-Card of Shri Dinesh. On 16.04.2013, Shri Dinesh brought the papers of M/s AMP Enterprises and filed the BE online from his office computer. On 17.04.2013, Shri Dinesh Kumar asked him for his account number to transfer the duty online. On the receipt of the account number, Shri Dinesh transferred the money through RTGS to his account and at that time, he learnt that importer was M/s AMP Enterprises and photocopier papers had been imported. He had not taken any KYC documents from M/s. AMP Enterprises and was not aware about its antecedents. He met Gulshan Singh only on 20.04.2013 at ICD, TKD during the examination of the containers.
12. Statement of Shri Gulshan Singh was recorded on 22.04.2013 which revealed that he was basically illiterate and could only manage to sign. He was working in a car repair workshop at Krishna Park with his brothers and the firm, M/s. AMP Enterprises was opened in January 2013, where he was the proprietor.
13. Shri Chandra Bhanu Singh Patwal, the employee of Dinesh Kumar was examined on 26.04.2013, where he stated that he had been working with „G Commerce‟ of CHA Shri Dinesh Kumar, however, Dinesh Kumar did not have CHA license and had been working by using license of other CHAs and he had been entering ICD, TKD by getting daily passes. He admitted that though he did not possess any „G‟ or „H‟ Card yet he signed the documents.
14. As a follow-up DRI officers visited the premises of McDonald restaurant on 27.04.2013 along with Shri Dinesh Kumar and checked 10 the CCTV footage recorded on 12.04.2013. Shri Dinesh Kumar confirmed that the three persons appearing with him were the same whom he met in connection with the imports of copier paper/R-22 refrigerant gas which was seized on 20.04.2013 at ICD, TKD. In a statement recorded on 13.06.2013, Shri Dinesh Kumar stated that Sardarji in photograph informed that the import consignment of photocopier paper arrived at ICD, TKD, which belongs to his friend and requested for clearance of the same.
15. On the basis of involvement of Shri Rupinder Singh Chaddha, resident of Punjabi Bagh West, his statement was recorded on 13.06.2013. As per his statement, he has graduate degree from Delhi University and postgraduate diploma from IMT, Ghaziabad. He got his CHA license in 2010 and was doing the customs clearance work. He surrendered his iPhone 5, IMEI number (01342) 700 8230. 146 having mobile number 9899666641, one Samsung mobile phone, SCHB379 having mobile number 9250926179 and one laptop, Inspiron 154 5446 examination. iPhone 5 was examined in his presence with the help of forensic experts and printouts were taken which were signed by him. The phones were kept in sealed cover envelopes. He admitted that he knew Shri Manish Jalhotra through his uncle Shri Bhupinder Singh Chaddha for last one year and he had taken a loan of Rs.2 lakhs on interest at the rate of 4% from him around July 2012. He returned Rs.1,00,000 in February 2013, and the remaining amount was still pending. He admitted that he was present at McDonald and was sitting with Manish Jalhotra, however, he did not know the other person sitting with him. When asked for the purpose of meeting at McDonald‟s on 12.04.2013, he stated that he had gone to Karol Bagh for some 11 personal work in his Swift Car No. 4591 when he got a call from Manish Jalhotra requesting him to come near his house in Karol Bagh and when he reached there, he told him that he did not have a car because his driver had gone somewhere else, and therefore requested him to take him to Kamla Nagar for some work. Thereafter, he and Manish reached Kamla Nagar at McDonald. After the food, he alone left from there in his car and Manish Jalhotra and the other persons remained there only. Further stated, that there was no discussion regarding the clearance of any cargo in McDonald on 12.04.2013 and the purpose was only to drop Manish Jalhotra.
16. On the same day on 13.06.2013, statement of Shri Manish Jalhotra was recorded where he admitted that he knew Shri Gulshan Singh, who had been dealing in sale/purchase of old cars and car repairs and recognised him in the photograph shown to him. According to his statement, one of the person in the photograph was Shri Vikas Gupta, whom he had met in China and also in India. On 12.04.2013, he met Vikas in Karol Bagh when Rupinder Singh Chaddha joined them. Then all of them sat in blue coloured Honda City Car, which was being driven by some driver. Regarding the meeting at McDonald‟s, he stated that he had gone to place order for food for three persons and when he was getting the food, he saw Shri Vikas Gupta and Shri Rupinder Singh Chaddha talking to one more person who was in the photograph, after the food, all of them went outside McDonald and sat in the car of the said fourth person when Shri Vikas Gupta introduced him and Shri Rupinder Singh Chaddha to that person who handed over his visiting card to Shri Rupinder Singh Chadha. Thereafter, he and Rupinder Singh Chaddha came out of the car and Vikas Gupta and that 12 person talked with each other for about five minutes, then Vikas also came out of the car and that person drew away with the car alone. Shri Vikas and Rupinder Chaddha dropped him at Kamla Nagar market.
17. The Department then conducted a discreet enquiry regarding the fourth person who was present at McDonald on 12.04.2013 and it was revealed that the said person was Shri Sandeep Kumar Moria. Statement of Sandeep Moria was recorded on 9.07.2013, where he stated that he was running a travel agency in the name of AVS Travels & Tours (P) Ltd. He admitted that he had gone to McDonald‟s Kamla Nagar on 12.04.2013 with Shri Manish Jalhotra, but since he was not feeling well, so he did not take food there. He also stated that Manish had called him to Karol Bagh and met him near his home, and thereafter, both of them sat in a car being driven by one Sardarji, whom he recognised in the photograph. He also recognised Dinesh Kumar Badopalia in the photograph who was present with them at McDonald‟s. He was confronted with the statement dated 13.06.2013 made by Shri Manish Jalhotra, however, he stated that he did not understand why Manish was naming him as Vikas Gupta. He clarified that he was Sandeep Kumar Moria and had no other name as Vikas Gupta. His nickname was Gullu. He stated Manish Jalhotra was his client and had been purchasing air tickets for international sectors through his travel agency.
18. The fact of he being Sandeep Moria has been admitted by Shri Dinesh Kumar Badopalia in his statement dated 9.07.2013, where he identified the photograph of Sandeep Moria to be one of the three persons whom he met at McDonald‟s on 12.04.2013. Further, Shri 13 Dinesh Kumar in his statement dated 13.06.2013 had stated that Sardarji Rupinder Singh Chaddha told him that import consignment of photocopy paper arrived at ICD,TKD belong to his friend and requested for clearance of the same. Also, on being asked, he stated that the said friend was the one who introduced himself as Mr.Vikas but was actually Manish Jalhotra. Therefore, the identity of Mr. Vikas was actually revealed as Manish Jalhotra by Rupinder Singh Chaddha. Shri Dinesh further stated that Shri Sandeep Kumar, whose photograph he had seen was also present there and referred to as his friend and requested him to clear one consignment of copier paper imported by their friend, Manish Jalhotra at ICD, TKD.
19. Apart from the statements, the Department recovered the data (printouts) from the mobile phone of Rupinder Singh Chaddha on 13.06.2013 and the audio recording. It appears that the soft copy of the printouts were not taken on 13.06.2013 and therefore, when Rupinder Singh Chaddha appeared on 30.07.2013, forensic examination was again conducted and two audio files were separately copied in CDs. One of the audio file was a recorded conversation dated 11.05.2013 between Shri Rupinder Singh Chaddha and Shri C.K. Jain, Deputy Commissioner regarding the impugned consignment which clearly revealed that Rupinder Singh Chaddha was actively involved in the clearance of the goods. As noted by the Adjudicating Authority, in the said recorded conversation, he could be heard talking and discussing about the strategy that he had planned, according to which he would record his statement if called by DRI and when his statement was recorded on 13.06.2013, he actually took the same stand before DRI, which clearly reflects about the modus operandi adopted by him 14 in manipulation of the transaction. The incriminating portions of the said recorded conversation as noted in the impugned order are set out below:-
"B: I am nowhere sir... I am nowhere.... We are nowhere.. hamara koi matlab nahi hai..agar koi DRI humare pass aati bhi hai to...humara yeh hai ki bhai yeh manish hai..isko main jaanta hun...isne mujhe kaha ki hum McDonalds chalte hain...mujhe kisi se milna hai..ab woh aage kisi CHA se mile ya kisi don se mile..
B. nahi.. we are..we are.. we are.. agar in case mujhe bulate bhi hai.. is case, video ke upar..video ke upa hi bula sakte hain otherwise mera koi contact nahi hai..bulate bhi hain toh mera yahi hai ki Manish ne bola tha ki saath chalo mere paas gaadi nahi hai aaj..to main wahan gaya aur usne kaha ki kisi se milna hai..ek ek burger khaynege..kisi se milna hai..mere friend ne kisi se milna hai..aur main uske saath baith gaya..ek ek burger khaya aur hum nikal aaye..main apne ghar chala gaye..uski gaadi aa gayi thi..driver aa gaya uska..woh chala gya..
A toh jo kuchh sensitive consignment hoti hai..jo kuchh aate hain..usme hum keh dete hain ki thoda sensitive consignment hai..isko nahi karna hai theek hai..woh karte rehte hain..woh kar liya tha humnse..agar kahoge toh phir main apne mein se..unse toh main maang nahi sakta..he was upset ki saala isme toh gas nikal gaya..ek baat batao.."
20. Shri Rupinder Singh was confronted with the record of proceedings and he stated that he did not recognise the voice of the person, who were having conversation in the said audio recording. His voice sample was taken by forensic expert on 5.08.2013, however, he pretended that he could not recognise the two voices in the said audio tape. Shri Chandan Kumar Jain was also confronted with audio recordings, however, he stated that some portion of voice could be that of his, though he was not certain, and the voice of other person was not recognisable to him. The voice samples of both Rupinder Singh Chaddha and C.K. Jain were sent to CFSL, Chandigarh for forensic examination on 20.09.2013, but it was informed that the case could 15 not be accepted since the specimen voice sample was not in the same text of the questioned voice sample and that the case will be accepted after fulfilling the said deficiency. Though fresh summons were issued to Rupinder Singh Chaddha, however, he did not appear and replied that he had no further information relating to the case to be divulged.
21. From the CDR details for the period during 11.04.2013 to 12.04.2013, it was apparent that there was frequent interaction between mobile number 9899666641 of Rupinder Singh Chaddha and another mobile number 8860940298, which, as per the Truecaller website was in the name of Manish Jalhotra, confirming that Rupinder Singh Chaddha was in touch with Shri Manish Jalhotra, the real importer of the goods.
22. The call details of the mobile phones have been considered by the Adjudicating Authority extensively and it has been found that Rupinder Singh Chaddha interacted with Shri Manish Jalhotra. Similarly, the call details of the mobile number, subscribed to Shri Dinesh also revealed interaction between him and Manish Jalhotra. The call details of the mobile number of Shri Gulshan Singh revealed interaction between him and Shri Manish Jalhotra and also Shri Dinesh Kumar Badopalia during the relevant period. This is sufficient to show the connection and the nexus between the parties, which otherwise they were trying to hide.
23. The parties have deliberately attempted to conceal the identity of Shri Manish Jalhotra and the relevant para from the impugned order clearly reflects so, which is quoted below:-
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"46. Further statement of Shri Gulshan Singh was recorded under Section 108 of the Customs Act, 1962 on 10.09.2013 (in response to summons dated 05.09.2013) wherein he interalia stated that the company in the name of AMP Enterprises was opened by Shri Vikas Goel in his name; that Shri Vikas Goel was the actual owner of the said company and he had nothing to do with the goods imported in the name of the said company, that he did not know the supplier of the goods; that he had not financed the import of the goods and it was Shri Vikas Goel who had financed the same; that Shri Vikas Goel had sent Customs duty amount to him in cash for payment which he had deposited in his account in Punjab National Bank, Vikas Puri, New Delhi; that he had opened the said bank account in the name of M/s AMP Enterprises at the behest of Shri Vikas Goel; that Shri Vikas Goel had told him that he would pay him Rs. 10,000 per container on the imports in the name of M/s AMP Enterprises, that this was the first consignment of two containers and he was to get Rs. 20,000 but Shri Vikas had not paid him the said amount so far. He reiterated his mobile no. 9811380381 and 9718380381 and his office telephone number 25995957. On being asked, he stated that Shri Vikas Goel used to contact him from his China mobile no. and sometimes, he used to visit him for the repair of his car. On being shown the call details between mobile no. 8860940298 and his mobile no. 9811380381 between April 11, 2013 and April 13, 2013, he stated interalia, that he had interacted with Shri Vikas Goel from the said number (ie. 8860940298); that he did not know the actual name of Shri Vikas Goel or it was possible that Shri Vikas Goel told him his wrong name. He confirmed that mobile no. 886094028 belonged to the same person who gave his name as Vikas Goel and at whose behest, be had opened M/s AMP Enterprises at the address of his car garage showing him as the proprietor; that he did not know how to read and write and he used to sign all the documents given by Shri Vikas Goel for monetary considerations; that it was Shri Vikas Goel who had imported R-22 Gas Cylinders illegally in the name of M/s AMP Enterprises whereas Sh Vikas Goel had told him that a consignment of paper was being imported; that he had signed the list of call details between mobile no. 981138031 and 8860940298 as well as pages 280 30 containing interalia details of calls between the said numbers provided by Vodafone.
46.1 On being asked, he stated that Shri Vikas Goel had sent Rs.3,50,000/- approx in cash for depositing in the said bank through a Sardar boy and he had deposited the same in the bank; that in this context, Shri Vikas had made several calls to him and on 13.04.2013, he had sent some documents on which he signed and then returned. He further stated that he knew Shri Manish Jalhotra who resided at House NO.52/25, Ranjas Road, Karol Bagh for the past two months."17
24. On the basis of the aforesaid, the Adjudicating Authority had drawn the entire chain of transaction as under:-
"55. From the foregoing, it also appeared S/shri Manish Jalhotra and Rupinder Singh Chaddha entered into a conspiracy to smuggle restricted R-22 Gas cylinders in the guise of Copier paper in container nos.CRXU 1551372 and GCUU 3009545 under Bill of Entry no.9865457 dated 16.04.2013 in the name of M/s.AMP Enterprises. In a bid to camouflage the true identity of the importer, Shri Manish Jalhotra impersonated and assumed the pseudo identity of one Vikas (as preplanned) and engaged the services of Shri Dinesh Badopalia through Shri Rupiner Singh Chadha. He lured Shri Gulshan Singh, who was known to him, by promising pecuniary gains and caused Shri Gulshan Singh to open a firm in the name of M/s.AMP Enterprises which was used as a front company for the import and clearance of the impugned consignment. By using the mobile no.9811380381 of Shri Gulshan Singh, Shri Dinesh Kumar Badopalia was contacted for engaging him in the clearance of the impugned consignment. Call details, as discussed above, corroborates regular interaction between Shri Gulshan Singh and Shri Dinesh Kumar Badopalia during the material/relevant period of time."
25. We may now deal with the respective cases of the appellants.
i). Shri Dinesh Kumar Badopalia Shri G.S. Arora, learned Counsel for Shri Dinesh Kumar submitted that he was approached for clearance of consignment of A- 4 size paper imported by M/s AMP Enterprises and on the basis of the import documents provided by the importer, he had filed the bill of entry. The customs clearance work was attended by the regular staff of Shri Prahlad Singh, CHA assisted by Shri Patwal, his employee. It was submitted that the appellant did not have any prior knowledge regarding concealment of restricted items in the consignment. He therefore, denied the allegations of involvement or abetment in the offence. The Department has relied on the statements of Shri Dinesh Kumar, which has been recorded on several dates and also the call 18 details of mobile number 9891288692 obtained from Idea Cellular Limited and it was found that the said number was subscribed to Shri Dinesh Kumar and perusal of the call details revealed interaction between Shri Dinesh Kumar and Shri Manish Jalhotra from international numbers and also with Shri Gulshan Singh during the relevant period. He was present at the meeting held at McDonald on 12.04.2013 along with the persons connected with the clearance of the consignment in question. More important, though Shri Dinesh Kumar did not have a valid G-Card, yet he was involved in the clearance of the consignment and filed the bill of entry for the clearance of the goods. Thus, it can be safely concluded that Shri Dinesh Kumar was involved and had abetted in the clearance of the consignment of R-22 Refrigerant Gas which is a restricted item.
(ii) Shri Prahlad Singh CHA Shri G.S. Arora, the learned counsel for the appellant submitted that the appellant was not aware of the clearance of the consignment and Dinesh Kumar had misused his office and computer to file the documents of the impugned consignment. He has failed to carry out the obligations which are linked to holding a CHA license. It was his duty to have enquired about the G-Card of Shri Dinesh, however, from his statement, we find that he allowed Dinesh Kumar to use the dongle and provided the account number to deposit the duty amount though he was not having a valid G-Card. He has also failed to take any KYC documents from M/s AMP Enterprises.
(iii) Shri Rupinder Singh Chaddha Shri Kamaljeet Singh, the learned Counsel for the appellant submitted that appellant has been a victim of circumstances and 19 has been roped in a false case. He has seriously challenged the recording obtained from the mobile phone as the conversation did not contain his voice and the voice sample given by him did not match with the voice on the taped conversation. He also submitted that the recording from the mobile phone has been tampered as the phone was seized by DRI on 13.06.2013 and all the available data was retrieved on the same day but the alleged taped conversation was not found in that. He also emphasised that CFSL report dated 15.07.2014 indicates the date of recording as 30.07.2013, which is much after the seizure of the phone on 13.06.2013. The learned Authorised Representative has denied the submissions and reiterated the findings of the Adjudicating Authority.
26. We find, that when the two containers were put on hold, the Department immediately recorded the statement of Shri Dinesh Kumar on 19.04.2013, whereby it was revealed that a meeting had taken place at McDonald restaurant in Kamla Nagar, where one Sardaarji was also present and on the basis of the CCTV footage obtained from McDonald, the said Sardarji was identified. When the said CCTV footage was confronted to Shri Rupinder Singh Chaddha, he identified himself to be the person present there. Thus the Department has proved beyond doubt that the appellant was present in the meeting at McDonald along with others. From the statement of Shri Rupinder Singh Chaddha and Shri Manish Jalhotra as discussed above, it is evident that they have taken contradictory stand regarding their visit to McDonald on 12.04.2013 with the intention to avoid any nexus with the purpose of the meeting. The Adjudicating Authority had 20 specifically recorded from the statements of the two that as per Manish Jalhotra, he along with Vikas and Rupinder Singh Chaddha proceeded in blue colour Honda City car driven by some driver, whereas Rupinder Singh submitted that Manish Jalhotra had called him and told him that he did not have a car and, therefore, both he and Manish Jalhotra reached Kamla Nagar in his Swift Car No.4591.
27. In his statement dated 12.09.2013, Shri Rupinder Singh stated that in the end of March 2013, Shri Manish Jalhotra telephonically enquired him, whether he was still clearing consignment of paper as he had imported one consignment of paper and wanted to clear the same. We also cannot ignore the fact that Rupinder Singh Chaddha himself had a CHA license in his own name, however, he used the services of Shri Dinesh Kumar Badopalia, who in turn used the office of Shri Prahlad Singh CHA for the clearance of the consignment. The sole intention is to somehow disassociate himself from the clearance of the illegal consignment of declared goods. The audio recording from the mobile of Shri Rupinder Singh Chaddha, which is substantiated by his statement, clearly reveals his involvement in facilitating the clearance of the consignment. Finding the audio tapes, a critical piece of evidence regarding the involvement of Shri Rupinder Singh Chaddha, the Adjudicating Authority took note of the relevant text of the tape conversation as under:-
"actually kya tha ki mera koi matlab nahi tha party se... ........ jo party hai usne aage ek Banda khada kiya hua hai, jo abhi DRI ja raha hai"
but sir, ye jo paise pahunche jai ye tow paunche hain... ... ... maine apne pass rakha hi nahi .. .... .... Aya vaha se ... ... ..... aaya aura age de diye."
"ism eek simple si cheez hai unhone ek banda khada kiya Vikas Goel, jo main aadmi Hongkong me hai usi ka samaan bhi hai... .... .... Aur ye jo banda hai jiska IEC 21 code hai isko unhone khada kiya hua hai... .... Isne haha hai maine sir company banai thi.. ... ..."
"agar koi DRI hamare pass aati bhi hai tow hamara ye hai ki bhae ye Manish hai isko main janta hu isne mujhe kaha hum McDonald chalet hai mujhe kisi se milna hai.. ... .... Ab vo aage kisi CHA se mile ya DON se mile.. ... .....
"kisi se mile mera kya matlab hai mai khud CHA hu... .... ...."
The Adjudicating Authority, therefore observed:-
"90.5 The above and several such other instances in the taped conversation indicate that the conversation completely related to the seizure case of the refrigerant gases. Very strong evidence emerges from the text itself that the quotes above were made by Shri Rupinder Singh Chaddha only, as in his various statements, he adopted the same version, planning for which is brought out in the taped conversation when the DRI recorded his statement on 13.06.2013.
28. One of the contentions raised by the learned Counsel challenging the taped conversation is that this conversation was not in his phone when the same was taken from him on 13.06.2013. From the records of the case and as discussed by the Adjudicating Authority, we find that the forensic examination of the phone of Rupinder Singh Chaddha was in his presence on the same date on 13.06.2013 when it was seized and only the printouts of the data was taken and no data was taken in the soft form. The forensic examination was conducted again on 30.07.2013 when the impugned audio file stored in the same was discovered and since the backup was taken on 30.07.2013 , it cannot be said that the recording was made on 30.07.2013, as it is merely the date of taking the back up. Hence, we do not find any merit in the submission of the learned Counsel in this regard. In so far as voice sample of the appellant which was taken on 05.08.2013, the same was not accepted by CFSL Chandigarh for the simple reason that the specimen voice was not in the same text of the question voice sample 22 and thereafter when Rupinder Singh Chaddha was summoned for recording his voice sample in the text of questioned voice sample, he refrained from appearing. Lastly, we may take note of the call detail records recovered, which clearly showed that the appellant was regularly interacting with Shri Manish Jalhotra. The Adjudicating Authority has rightly concluded that the statements and the text of the audio recording clearly establishes the involvement of the appellant and hence is liable for penal action under Section 112 of the Act.
(i) Shri Sandeep Kumar Moria Shri Rajeev Tuli, the learned Counsel for Shri Sandeep Kumar argued that the appellant has been penalised merely because he was present in the meeting held at McDonald on 12.04.2013 at the instance of Manish Jalhotra. He submitted there is no evidence against the appellant with regard to any involvement in the import/release of the consignment. He denied the allegation made by Dinesh Kumar Badopalia in his statement dated 9.07.2013 being an afterthought that he requested for the clearance of the goods. We find that the Adjudicating Authority has recorded a finding that the appellant was also part of the network involved in the smuggling racket but with perhaps a lesser stake on the simple analogy that the presence of the parties in the meeting at McDonald was not incidental but was for a specific purpose for the clearance of the consignment and that is how the involvement of the appellant cannot be bifurcated with the other three persons, namely Rupinder Singh, Chaddha, Manish Jalhotra and Dinesh Badopalia who all had gathered there to somehow manage the clearance of the consignment. Reliance has also been placed by the Department, on the circumstantial evidence pointing to the past 23 involvement of the appellant in the import of wiremesh and Shri Manish Jalhotra was also involved in the import of wiremesh. The appellant has not been able to discharge the burden of not being the part of the syndicate involved in the clearance of illegal imports and hence has been rightly penalised under Section 112 of the Act.
29. The learned Counsel for the appellant have also challenged the impugned order on the ground that they have not been granted an opportunity of cross examination and relied on the decision of the Apex Court in Andaman Timber Industries versus Commissioner of Central Excise, Kolkata-II, 3 . The Apex Court accepted the plea of serious flaw in denying cross-examination of the two witnesses on the ground that if the testimony of these two witnesses is discredited, there is no other material with the revenue to justify its action. Considering the present case where a pre-planned conspiracy has been hatched for the clearance of restricted goods by concealing them behind the declared goods, coupled with the fact that apart from the statements of the parties and the witnesses, the Department has unearthed the evidence of CCTV footage, call detail records, and the audio recording of the mobile phone. The facts of the present case being distinguishable, the decision of the Apex Court is not really applicable.
30. The learned Counsel for the appellant have referred to the decision in Shafeek P.K. versus Commissioner of Customs, Cochin 4 , where the Tribunal rejected the proposal to impose penalty upon the appellant on the basis of the retracted statement of the co-accused in 3 2015 (324) ELT 641 (SC) 4 2015 (325) ELT 199 (Tri. Bang) 24 the absence of any corroborative material. We cannot ignore the fact that statements of the appellants and other persons have not been retracted by them at any point of time and hence the evidentiary value of these statements cannot be doubted.
31. In so far as the extent of proof is concerned, it is a settled principle of law that in judicial proceedings that involve evasion of tax laws or evasion of customs duty, lower threshold of proof, i.e., preponderance of probability is to be followed and it is not required to insist upon proving the case beyond reasonable doubt. Reliance is placed on the decision in Naresh J. Sukhwani versus Union of India5 and K.I. Pavunny versus Assistant Collector, Cochin 6 . Keeping that in view, we are of the firm opinion that the Revenue has established clear nexus between the four people who deliberately assembled at McDonald on 12.04.2013 with the sole purpose of seeking clearance of the containers. The chronology of events as referred above from 11th April to 20 April 2013, points to the time proximity of the meeting, which is an important factor reinforcing the objective of clearance of the smuggled goods.
32. We take note of the decision referred to by the Revenue in the case of Indru Ramachand Bharwani versus Union of India7. The observations made by the Delhi High Court that normally it is very difficult to have direct or positive evidence for actual commission or violation of the customs laws. One has to depend upon circumstantial evidence in large number of cases. The principle that it is a matter of 5 1996 (83) ELT 258 (SC) 6 1997(90) ELT 241(SC) 7 1988 (38)ELT 459(Del.) 25 inference to be drawn from the surrounding circumstances and the conduct of the party concerned, is squarely applicable in the circumstances of the present case. The decision of the Delhi High Court was affirmed by the Apex Court 8.
33. In similar circumstances, the Delhi High Court in Sudhir Sharma versus Commissioner of Customs 9 had noted that the conclusion of the customs Adjudicating Commissioner did not rest on the various statements recorded under Section 108, only, but a very crucial element, which lent corroboration to those statements were the call detail records and in that context, referred to the decision of the Apex Court in Lal Singh versus State of Gujarat10, where it has been observed as under:
"32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the persons concerned in it. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice."
34. The Delhi High Court took note of the observations and findings recorded by the Commissioner which we find are relevant in the present context that "if the circumstances surrounding such telephonic exchange are suggestive of possible connivance and the frequency and timing of the calls further enhances such a suspicion, then it does give rise to the possibility of existence of an unholy nexus". The High Court had accepted the findings based on the analogy given by the 1992(59)ELT201(SC) 8 9 2015 (319) ELT 450 (Del.) 2001(3)SCC 221 10 26 Commissioner, "for example, if a co-noticee has been in touch with people or passengers who were charged with import of huge quantity of commercial baggage on regular basis, it might be possible to impute the knowledge and intention of such co-notices". The said principle clearly links all the four appellants with the acts of attempting to clearance of illegal imports.
35. The entire controversy is centred around the meeting held at McDonald restaurant on 12.04.2013, where four people who were known to each other through the common factor of Manish Jalhotra. One thing is clear from the records and the investigations made that the meeting was not incidental but was preplanned where all the four parties had gathered for a specific purpose. In the ordinary course, had the goods been imported as per the declaration made, there was no need for assimilating several people to draw up the strategy for clearance of the goods. This denotes that all the four persons, who met there had knowledge that the consignment which has to be cleared contained restricted/prohibited goods which is not permissible to be imported. In the light of the principle affirmed by the Delhi High Court in Sudhir Sharma (supra) that the intention and knowledge of the co-accused has to be inferred on the basis of circumstances of the situation, we have no doubt that all the appellants worked for a common object. Further, the same principle would apply here also, that the appellants were implicated for their complicity not only on the basis of the statements recorded under Section 108 but also on other substantive material, like CCTV footage, Phone Call records and audio clippings.
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36. Moreover, the appellants namely, Manish Jalhotra, Rupinder Singh Chaddha, and Sandeep Kumar Moria admitted their presence, however, variant descriptions have been given to somehow circumvent the true nature of the transaction. The identity of Vikas was misconceived and misrepresented as determined by the Department, it was none else, but Shri Manish Jalhotra, the mastermind and the actual importer of R-22 Rrefrigeratrant Gas. In the circumstances, the impugned order has rightly imposed proportionate penalty considering the respective role and involvement of the appellants, who were party to the transaction of clearance of the containers under the provisions of Section 112 of the Act.
37. We do not find any good reason to interfere with the impugned order imposing penalties on the appellants under the provisions of Section 112 of the Act. The appeals are, accordingly, dismissed. [Order pronounced on 3rd June, 2025 ] (BINU TAMTA) MEMBER ( JUDICIAL ) (P.V. SUBBA RAO) MEMBER ( TECHNICAL ) Ckp.