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. 75622 of 2022
(Arising out of Order-in-Original No. KOL/CUS/Pr.COMMISSIONER/AP/ADMN/16/2022
dated 21.06.2022 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. 76629 / 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/16/2022 dated 21.06.2022, passed by the Principal Commissioner of Customs, Airport & Air Cargo Complex Commissionerate, Custom House, Kolkata whereby penalties of Rs. 2 lakh each have been imposed upon the appellant under Sections 112(a)(i), 112(b)(i) and 114AA of the Customs Act, 1962.
Page 2 of 12Appeal No.: C/75622/2022-SM
2. The brief facts of the case are that on the basis of specific information, the Directorate of Revenue Intelligence, Kolkata Zonal Unit, intercepted one consignment imported vide Bill of Entry No. 9959888, dated 05.06.2017 filed by the importer M/s Lotus Impex (India), New Delhi which were declared to contain mobile screen guard, mobile back cover & USB Cable etc. The said Bill of Entry was assessed to duty enhancing the value for 7 items and total duty of Rs. 87,472/- was debited through scrips against the assessable value of Rs. 3,95,947/-.
2.1. On interception and subsequent Pachamama drawn by DRI on 27.06.2017, the goods were found to have been grossly mis-declared in terms of description and quantity (as detailed in paragraph 2.1 and 3.1 of the impugned Show Cause Notice). As against the assessed value of Rs. 3,95,947/-, the total ascertained value of the consignment was assessed to be Rs.1,70,94,950/-. The goods imported under the said Bill of Entry were thus seized under Section 110(1) of the Customs Act 1962.
2.2. On completion of the investigation, a Show Cause Notice covering the impugned consignment was issued by the DRI on 02.12.2017, wherein the goods were sought to be confiscated under Sections 111 and Section 119 of the Act and penalty was sought to be imposed under Sections 112(a), Section 112(b) and Section 114AA of the Customs Act 1962 on all the noticees therein, including the appellant.
2.3. On adjudication, the ld. adjudicating authority has confiscated the impugned goods vide the impugned order and imposed penalties of Rs. 2 lakhs each under the Sections 112(a), 112(b) and 114AA of the Customs Act, 1962 on the appellant.
Page 3 of 12Appeal No.: C/75622/2022-SM 2.4. Aggrieved by the imposition of penalties on him, the appellant has filed this appeal.
3. The Ld. Counsel appearing on behalf of the appellant submitted that the impugned Show Cause Notice is erroneous on the facts and in law, since he 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 allegedly created among 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. He submits that the appellant has denied to have any knowledge about their modus operandi. It is further submitted that for lack of office set up in the Air Cargo Complex by most of the CBs, the appellant's CB Firm used to extend co- operation in sharing office apparatus, machinery and equipment purely out of courtesy; in the process, he had allowed using his computer to Nasiruddin under a bona fide belief. He further stated that the said Nasiruddin was picked up by Navneet Kumar, Deputy Commissioner and not by the appellant and therefore, the allegation that the appellant had introduced Nasiruddin with a number of brokers/importers for clearance of the impugned consignments cannot sustain.
3.1. Moreover, it is also the appellant's submission 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 was not aware nor was 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.
Page 4 of 12Appeal No.: C/75622/2022-SM 3.2. The Ld. Counsel for the appellant also contends that the uncorroborated statements of Alok Ghosh, Sukhendu, Maity, Mayur Mehta and P. Bala have no evidentiary value as far as the appellant is concerned; that there was nothing in the Show Cause Notice or its RUDs to prove that the appellant was in the know of anything being done like smuggling or that the appellant derived or intended to derive any benefit from the alleged imports. Hence, he submits that there was no reason or justification for the appellant to do anything illegal making it evident that he has been falsely been implicated in this case. It is also stated that there is no allegation that the appellant has received or intended to receive any benefit either in cash or kind from the impugned goods or the importers, whereas there is ample evidence that all the noticees except the appellant had financial interest in the impugned importation.
3.3. Moreover, it is contended by the appellant that M/s. Nirmala Bala Trading Company is an independent Proprietorship firm and the appellant is in no way related with the transactions of the said firm, which used to deal with DEPB scrips and therefore, the transaction between M/s. Pacific Enterprise and M/s. Nirmala Bala Trading cannot be attributed to the appellant for imposition of penalty.
3.4. Regarding the penalties imposed on him, the Ld. Counsel for the appellant submitted that Section 112(a) of the Act had been wrongly invoked against him as he neither 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; the impugned order does not reveal any such act of abetment on his part save and except Page 5 of 12 Appeal No.: C/75622/2022-SM insinuation. In respect of the penalty imposed under Section 112(b) of the Act, it is contended that the said Section has been wrongly invoked against him inasmuch 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. Further, it is also the argument of the Ld. Counsel for the appellant that the conditions envisaged for imposing penalty under section 114AA do not exist in this case and hence no penalty imposable under this Section either.
3.5. 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 penalties imposed on the appellant, vide Final Order No. 76182 of 2025 dated 02.05.2025.
3.6. Therefore, in view of these submissions, 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, has prayed for setting aside the penalties imposed on him.
4. The Ld. Authorized Representative of the Revenue submits that the appellant had a close nexus with Mayur Mehta, a Customs Broker, his employee Monika Vora, Navneet Kumar (Deputy Commissioner) and the Customs Broker firm i.e., M/s. Sadguru Forwarders Pvt. Ltd. It is his submission that the above entities together operated as a syndicate and facilitated clearance of misdeclared/undervalued goods. Thus, he justified the imposition of penalties on the appellant herein.
Page 6 of 12Appeal No.: C/75622/2022-SM
5. Heard both sides and perused the appeal records.
6. I find that in this case, the officers of DRI, Kolkata Zonal Unit intercepted one consignment imported by the appellant vide Bill of Entry No. 9959888, dated 05.06.2017. The bill of entry was filed by the importer M/s Lotus Impex (India), New Delhi. On examination, the goods were found to be grossly mis-declared in terms of description as well as quantity. Also, the goods were found to be undervalued. Accordingly, the impugned Show Cause Notice was issued wherein the following allegation was made against the appellant in paragraph No. 13.5.3. of the said Notice. For the sake of ready reference, the said paragraph is reproduced below:
"13.5.3 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 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 connivance 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. He introduced Nasir to Shri Jatinder Singh Ahuja, knowing fully well that he would be importing misdeclared goods and contrabands. In fact, with the help of Nasir he allowed Shri Jatinder Singh Ahuja to avail the services of the syndicate to clear the misdeclared goods and as a result he would enjoy monetary benefit accruable to him being a partner in the conspiracy. It was very well known to him that the goods were grossly misdeclared and are liable to confiscation under the Customs Act 1962, yet he facilitated the clearance of such goods through Customs by arranging Nasiruddin to clear the goods for him by using the services of the syndicate. Further even the payment of duty was made through licenses by the firm Nirmala Bala Page 7 of 12 Appeal No.: C/75622/2022-SM Trading Co. which is basically a family company of Sri Sajal Das and deals with the Licenses. In past, he had also handled 9 consignments of the subject importer in similar modus operandi. 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 Lotus Impex (India). Therefore, it appears that Shri Sajal Das had rendered himself liable for penal action under Section 112(a), Section 112(b) and Section 114 AA of the Customs Act, 1962 for his act of omission and commission."
6.1. From the above, I observe that although the allegation of the Department is that the appellant has facilitated clearance of the misdeclared goods, there is no evidence on record to substantiate this allegation. It is also the allegation against the appellant that he has allowed Nasiruddin to use their office and computer. 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 that he has no objection with regard to the confiscation of the goods and the order for destruction of the cigarettes seized. Thus, I 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 was in any way connected with the subject goods.
6.2. 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 Page 8 of 12 Appeal No.: C/75622/2022-SM Section 112 of the Customs Act, 1962 have been satisfied in this case. I also do not find any corroborative evidence available on record to establish that the appellant had contravened or violated any of the provisions of the Customs Act. Thus, 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.
6.3. In this regard, I refer to the decision of this Tribunal vide Final Order No. 76182 of 2025 dated 02.05.2025 in Customs Appeal No. 75621 of 2022, rendered 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, whereby this Tribunal has set aside the penalties imposed. For the sake of ready reference, the 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 Page 9 of 12 Appeal No.: C/75622/2022-SM 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 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 Page 10 of 12 Appeal No.: C/75622/2022-SM 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 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 Page 11 of 12 Appeal No.: C/75622/2022-SM 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."
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.
Page 12 of 12Appeal No.: C/75622/2022-SM
8. Consequently, I set aside the penalties of Rs. 2 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