OFFICE

THE COMMISSIONER OF

CUS~fOM

(IMPORT & GENERAL)

NEW CUSTOM HOUSE, NEW

1.

No.VIII(HQ)lO/I&G/ Adj./Prashun Jain/39/11/

Order

-in~

The present proccer11n~~ a

17.11.2011lssued vide

out of the

No. VIII/SIIB/Cus./I&G/1

B-5/109, Mayur Apptts.,

/2013

/NlB/ComnH".

Original No.

h.

Rohini, New Delhi; Sh.

7/16-17, 1st Floor, Sector-11, Rohlni; Sh. Blplav Kumar,

CHA M/s Rajlnder IJ.

Ke~pur

nder ~.

M/s

Masjld, M.B. Road New Delh1"44; M/s

Main Vasant Kunj

pur~ l'ulpctlt

m Freight Forwa

, Mata Chowk, Mahlpalpur, New

New Delhi for evasion of

Ltd.,New Customs H

to fraudulent Import of Micro

of textile machine In the name

rds and RAMs in

rli

U, namely, M/s

an

Brief fi,1Ctst:
2.

On the basis of specific lnteliigence, the

& Intelligence Branch (SIIB)

Custom House 1 New

Import &

of

Com

hi, Intercepted an import consignm

weighing 85 Kgs under Bill of Entry No. 168385 dated 16 11

at'rlved vldt:ll MAWB Nu

MJ09J.J 1 0 ,

CHA M/s Rajinder P,

pur, in the name of M/s Rajdhan

1955 to 1965, near 6 Km

lllll of

Chomu Village Jaltpu

EOU. The goods were declared as "Heald Fram

machine) having value of

ry

( pa

862/~, claimed NIL

under Notifications No.

dated 01.

dated 01.03.2008, S.No.

During the course

03 and
inquiry

one Shrl Prashun Jain came forward with the gate

, name

. N

for the consignment before the officers at the exit side

of examination hall No, 3 and Introduced himself as

Prashun Jain CHA havino registration No.
He informed that the subject

Olplav Kumar

Mnhlla no

subject shipment to

nment had been g

,tj

osri

nf

and that he had

having registration No.

handing over the

1/2006 and "

of

Gate Pass to him for

destination. The Customs Officers In

no.

and Shrl Prashun Jain shlftecJ the shipment to examination

enquired about the contents of the shipment, Shri
the shipment consisted

rl

un

Micro SD memory

Thereafter, the officers cond

100/rJ examination

of which, the officers found Micro

or

rds of 2 GB~

different speeds, the dt.?.tails of g

found were

Panch nama dated 18/19 November,20 1 L Since the

they were seized under

110 of tl1e Customs

referred as the Act),

Rs 67,

gCJods was

total value of the

000/-. The

goods were then handecl over

the safe custody under a superdginama dated 19,11.2010

3.

Shri Prashun Jain in his voluntary statement

on 1

under Section 108 of the Customs Act, 1962, inter al

Proprietor of M/s, Prashl.ln Jain, CHA (R-91/2006) having
and he had betm in this busl

the last 1 5

lpmenl 11e

officer! enquired ebout Ute e

officers outside the clearance gate of examination

enquiry about the

h~"\ll

t covered under MAWB No

HAWB No. 190954 and B/E No. 168385 dated 16,11

said shipment had

cleared by Sh. Biplav Kuma

s. Rajlnder P. Kapur, CHA (R-0

Entry

that he did not

filed or other documents related to the shipm

Kumar had left the cargo

mplex

clearance

handed over the copy of

gate pass to him

shipment to

submitted the co

destination,

Custom officers under h

dateci

shipment consisted of Micro

ixplaln e:tbout the

natures, He further
rds of

B; that

ri

that the Bill of Entry

had been filed In the name of M/s Rajclhani Craft,

P Kapur, CHA and the items declared were spare pa

Rajdhani Craft was

100/o

information about M/s Rajdhanl

he had arranged the Importer and I

U situated in Chand
could be given by
number; tl1

to M/s Rajdhanl Crafts; that he and Sh. Biplav KLm1i';'lr

between them according
who would provide

which he (Prashun

in)

nclal assistance and procure t~1e

Importer I IEC holder whose Bill

Entry was marked on

no.3 a

the system; that bein9 a ~

rd holder1 he never wanted

license by indulging In such mls-declaratlon of goods and that wc:1s

chosE~

Sh Biplav Kuma,r who worked for M/s Rajender

needed money; that Sh.

plav Kumar had only Entry

that one Sh. Prikshlt Sharma and Sh. Manoj Srivastava arra
in

and procured the shipment in China and Sh. Raja used to

Nehru Place; that he was aware that Micro SD Ca

R/\M

in the guise of other items by using the name and

he had all the information about the shipment that

declaretlon or tt'e description end qw:mtlty of goocls

admitted that he had committed a blunder by mis-decla
and quantity of the goods and also- using the name
unit M/s Rajdhani Craft to evade the Customs Duty; that
exact address of Sh. Blplav Kumar tJut he knew that
(Delhi); that they (he & Biplav Kumar) had cleared three shl
SO Cards and RAM in the name of M/s Rajdhanl Crafts; that
of M/s Rajdhanl Crafts was n

known to him anl1

Importer was based in Chandlgarh.

4,

Another statement of Shri Prashun Jain, was a

19.11.2010 under Section 108 of theCA, 1962, In which

kn1w

importation of goods n cargo very well; that the

HAWB No, 589~93215485

I 190954 of 8/E No. 1

declared as 'Machine spares'; that the papers for the salcj

months; that the goods wen~

Rajinder P Kapur for the last

machine spares in custom

pers/documents whereas the same

SD Cards of 2 GB and RAMS; that those goods were im

Kong/China In the name of M/s Rajdhanl Crafts; that

Imported by one, Sh. Prashant

pta, having office

1 ,

Nehru Place, New Delhi, who clealt in computer pa

did not know the exact residential address of Sh. Prash

that he lived In Sector~ 1l,

hlnl N~w D1lhl; that

Gupta since the last 3-4 months; that he knew

introduced by Sh.
Prashant Gupta

was

rikshlt Sharma and Sh, Man

pay

him

85,00

consignment; that S~L Prashant Gupta used to contact him on

for clearance of such consignments that earlier a

they

consignments of Sh. Prashant Gupta; that he

amount to get them

retj

Rems & Cards; that

that the deliver

by

to pay

ring them
Wt;!ll t~1

was

his ed.

order was collected and further

Kumar; that M/s Rajdhani Crafts was situated in Jaipur ancl not
stated in h

5.

earlier statement.

During Investigation it was observed that in the

said MAWB, tt1e address of M/s Rajdhani Craft was m

Centre, New DeihL

n enqu

Shrl Kuldeep 1 consolidation executive n M/s

M Freig

Millennium Towers, Jasola

It was

be fake/non-existent

6.

Ltd (the freight forwarder in th

recorded In h

volu

22.11.2010 under Section 108 of the Custorns Act, 1

of t11

collection of "Delivery

1rr1pugn1d

that they had received an t:n11ount of Rs. 3,111.00 from

cash as service cha
Kumar such as 'I'

nd he had asked for the Identity

rti or driving 1

also asked him to courier the o

Delivery Order to Sh Sunil

which he could
inal authority; that

l1ad

mar on earlier ocqasions.

I
I

7.
In

Shri Rajlnder P
~1is

pur, Proprietor of CHA-M/s

voluntary statement on

lncjer P.

.11.2010 under Section

Act, 1962, lnter-alia 1 stated that Sh Blplav Kumar was a "

company for the last

pu

years on a salary of

the
ca

. 5000/-

carci was valid up to 2008; that he had asked hirn

Customs but It was not renewed; that he should not l1ave
company work; th

It

his responsibility

work; that he was not aware

w~10

fllec1 Bill

obtain

or

Entry

16.11.10; that he came to know about the firmv M/s RajcJhanl

the Freight Forwarder M/s Exim Services but he L1id not
On being shown a letter

0. HL 10 on letterhead

addressee! to the Security Manager (DIAL), IGI AlrpCJrt,

in exam area to Sh. B!plav

permission/permanent

l1is signature on the letter.

8.

Search was conducted on 24.11.10 at the

Gupta. On

. 11. 10, the residence

M/s Prashun Jain, CHA was sea

Shri Sunil Kumar in h

()f

Sh, Sunil K.urna ,

, but nothing incrimi

voluntary statement recl)rded

r,

on behalf of CHA- M/s Prashun Jain

Rs. 5000/- per month a agency cha
9.

The residential address of

i.e. 774/31, Gali No.

10

t'

plav Kumar,

F Block, Raj Nagar-II, Extension

on 02.12.2010. During the

the demise of h

in cash.

rch it was found that he

relative and never returned thereafter.

rl M~1kesh

Statement of

Delhi was recorded

In

lor

rma,

em 30. 1L

annexures and out of these three annexures were com

annexure for Bill of

dated 13.

No.

required copy of the 'G

ID proof; that It was

rd of

person who had

serious Ia

on the part

annexures to Bills of Entry Nos.

dated

16.11.10 and l

dated 16. 11.10 were not

possible to gen

Bill of Entry without the con

employee; that proper procedure had not been followed

at the submission counter on the date of submission
docket/check list lr,
cashier, Mr. Madan

of the said Bill or !ntt"Y

Dogra, and that Sh. Pankaj Bha

In the system which gen

1L

jobs.

The Impugned consignment had been booked th

Shri Klshan Pair and accordingly h

statement, was

under Section 108 of the Customs Act, 1

that he knew Prashun
had issued the bill In

name of

been booked by Sh Sonu

h. Sonu Jain; that

n himself on 18, L 10

submitted the daily list signed

rn, wherein

name of Rajdhanl (Sonu Jain) and other details like AWB

Entry No, were mentioned.
Sonu

12.

also submitted a book

J~in,

Statement dated

, 1 . 10 of Shrl Pankaj Kumar, Ern

New Delhi was recor(1ed u

he inter-alia stated that
AZ Dalamall Pvt
manpower to CM that

108 of the
working in CMC
Defence Colony I New

16 . 11.10 the system

to 1430 hours due to which th

Bill

or Entries;

was rush at the

that he had given a 1

bmlsslon to room no, 1

Sharma who took them for

House; that whenever the system wa

submission counter tJsed to give
Sharma and to keep

job num
shut down

a list of job numbe

checklist annexure (documents)

16,11.10 the documents were with him; that

Sharma had given the Bill of Entry Nos to him; that
documents from Sh. Mukesh Sharma after he
numbers; that he did not have the Job Register wherein
No, 168385 dated

.1L10 was mentioned; Shri Madan

CMC, NCH, New Delhi recorded In h

statement on

108 of the Customs Act, 1

lia, stated th

the docket check lilt In

13.

,1 ,
was

ld Bill of

The Statement

Shri

nkaj Kumar, D

recorded under Section 108 of the Customs Act, 1

on

inter-alia, stated that after loading goods from t\ir

delivered the same at their
no. 16 of

after

ng the

Register

destinations

ring the name AEROLINE

me he

Sonu Jain and he sign

mltted that the detai

the

he had seen page no. 1

of another

LONG EXERCISE BOOK and

confirmed that

Munshl of the Transporter

Sh. Sonu Jain three times In Rohini; that the Mobi

931

take

7916 and that

the goods

to

load

Rohlni that Sh.

he used to receive calls from some unknown p~::!rson

a person who would un

reaching Rohinl he used to m

in this manner he had delivered the goods of Sh

that he had nob~d down the address

it was F-

68/69,

which

RohinL

the goods of Sh. Sonu Ja n without any delivery chal n

14.

On 9, 12. 10, sea

Infotech Pvt. Ltd.,

was conducted at the

, Deepali

., Nehru

which Introduced Sh. Prasahant Gupta to the

Aviation

(P)

few &ale Invoice were

nchnama was drawn on

awa

15.

rl Badan Singh RatJtela of

The statement of

Services P. Ltd., Mahipalpur, was recorded under

Act, 1962, on 09. 12.10 wherein he, lnter-alla,

the

forwarding

of

previous

consignments

Communications, Nehru Place, New Delhi (firm of

all the payments were received by them in cash
Chandni C~mwk New Delhl-6

M s Abhishek Electron

lnrotech Pvt. Ltd, Nehru Place, New

lhl; that Sh. Om

of their company used to hanc1over D.O. to Sh. Sonu th

had left the services of their company.

16.

Statement of Sh.

mlr

t1a

rwal, Partner of M/s.

No. 1955-1965, Near 6 KM Milestone, VIIL, Jaitpura Chomu

recorded on 02.12.2010 by the officers of Central

14 of the Central Excise Act, 1944 wherein he, inter-a! ,

business was of export

wooden furniture; that

materials, duty free, lfk(~ machines, wood, polishing

, again

I,

CT-3; that they did not file any Bill

16.11.10 or receive any goods against the saicl Bill of E

know who had filed

said Bill of Entry; that they die!

Delhi; that they did not ylve eny eutt1or1ty ror

anyone except their CHAs, M/s EXIM Services, M/s
and M/s HTL Logistics India P. Ltd; that he did not know
Biplav Kumar and Sh. Prashant Gupta and never t1

persons.

17.

Sub-Inspector of Rajasthan Pollee, Jalpur, vhje

that M/s Rajdhani Crafts, 1955

Jaltpura/ Jalpur,

1965, 6 KM Mi

had flied a complaint that someone h

the name of M/s Rajdhanl Crafts, Unit 1301 13

, Mllleniurn

Dlst. and that they did not have any office/unit

the

address and they further requested to supply the detai

seized.
18.

Further,

20.12.10, were

various

Summons

dated

24.11.10

to Sh. Prashant Gupta for

ppec::nance

Customs Department, but he never turned up.

summons dated 26.05.11, 21

.11, 08.08.11, 08.09.11

never turned up or joined tr1e Investigations.

was

r
.10.

19.

The Assistant

mission

Central

11/ 556 de ted: 1

letter C No IV(16)24/

per their office records 1 the goods in respect of the Bills

, were never imported and

pu

by M/s Rajdhani

Sh Prashun Jain n his statement had accepted U1

imported

3 consignrnents in the name of M/s

admitted that In

the

were

In the present consignment The printout of Bills of t:ntry

S.No. 1 and 2 were retrieved from the EDI system which
name of M/s Rajdhani

of imports made in tt1

above findings and

it appeared th

mitta

the

fraudulently by mls-declaring and by forging docum

Rajdhani

Jalpur 1 were therefore, liable for

was liable to be recovered In

20,

The

of above th

applicable Customs

Duty

rates of

90 and RAMs

classifiable under CTH

as applicable at the relevant time were considered

appropriate Customs

payat>le, Tt1e detai

under:
BCD

CVD ,~ Ed. Cess & Sec. Ed.

on CVO

Nil

100/o

2L

The goods covered under

~Ed.

20/o+ 1 Ofo

Cess & Sec. Ed. Cess on

months from the date

II

Entry No.1

re. However,

Shri Biplav Kumar

nt

upta did not

despite repeated

the period

cause notice was

another
mHo

In view of above 1 M/s;

to Show

us~ to the

Addt

Nil

were seized on 19.1L10 and

Customs (I&G), New

BCI>~

months

New Delhi vide

htm

In and

mmlssloner oF

to why (i)

Commlssionerate, New Custom House, New Delhi

covered under the Bill of Entry No. 1683

dated 16.1 L

67,29,000/-, should not be confiscated under Section 111(1)

11

(m) of the Custom Act, 1962. The goods covered under

II

991362 dated 13.9.10 and 95781

val

3,88,58,788/

dated 13.8.10 col

should not be held I ble for confiscation

nder Section

111 (1) ancl 111 (m) of the Custmn Act, 1962; (II)
goods

should

not

undt:::r

reel value

Ru

(Determination of Valuation of Imported Goods)

value of those goods should not be

to

provided in Rule 5 ibid; (iii) the differential Customs duty amou

17,015/-

should not be demanded ancl recovered

Section 28( 4) of the Customs Act, 1

; (iv) Penalty u

on

lm

Section 114AA of the Customs Act, 1962 st"lOu ld not

separately for the contraventions expl

ned above,

23.

rd holder of M/s Rajlnder P.

Further, Sh. Bip!av Kumar 'H'

his CHA M/s Rajinder P. Kapur were also asked

p(~nalty

should not

show cause

Imposed LJpon them under

114AA of' the Customs Act, 1

f'or tl1elr

of om

1:1

detailed above
24

M/s CMC , New Custom House, New Delhi and M/s

Forwarders Pvt. Ltd, tl1e Freight Forwarder were a

uncjer

and 117 of the Customs Act, 19

.1 ReRIY of Ngticee Ng. 1: Sh. Pr.ahyn

JS~in

, l.l.Shri Prast1un Jain (Noticee No.1) submitted

his

deled 1 , l ,

use Notice vide! his

He denied the allegations and are repudiate(i at the

the duty demand and penalty Imposed were based on incorrect a

the provisions of the Custorr1s ~

proprietor of M/s Kishanpal

He sought the

nsport Services. He

rther

that he gave an Inculpatory statement against h

Involuntarily. By virtue of that statement/ the department

guilt on the Noticee for an lmpnrt of

upon

cause as to why penalty sr10uld not t1e imposed upon

(i)

consignment which was

M/s R{ljlnder P. Kepur, CHA fot# M/s RejcHiani Crafts,

r.

was cleared by allegedly misdeclaring Micro SD Memory

"Heald Framen vide

II of Entry Number 1683

which

Noticee was coerced into admitting guilt in a

bearing with him. SWI

he had to write down whatever

albeit unwillingly.

(ii)

that continued harassment was in clear violation

rights enshrined under Article 1

J\rticle 19(1) (g) and

Constitution of India, 1950 which hacj been broaden

in

Apex Court of India in a catena of jucjgments; the funcJam

been declared to be a part of the

the touchstone

structure of

, 'lhe ectlons of e

our

unethical, but also in violation of the fundamental ri~Jhts

(iii)

that there was not an iota of evidence against

his statement and that of the 'Transporter. With

rd

was submitted that the same was recorded involuntarily a

retracted at the first available opportunity in front
Magistrate

and

later

before

the

concerned

Ho

Metropolitan Magistrate. Thus, the said statement

become

non-est in

the eyes of law in view of various jud

by the Hon'ble Supreme Court of India.

(iv)

that the retracted statement of the Notlcee

transporter were the only things on

r~~cord

Impute guilt upon hl

did not pertain to the Notlcee much

repetition, it was brought

against r,lm,

the notice th

neither the Oil

other import document contains the name or the

Therefore, infractions if any could not
(v)

gnatures

sai(j to be on pa

that the provision of; Section 13

either the Customs

135 or any other

House A~Jent

or the

2004 were not attracted and any further coercive action

noticee would only result in his harassment for no reason

nd

grave miscarriage of j
(vi)

that

the

goocls

covered

under

the

Bill

of

dated13.08.10/957813 datt:-d 13.08.1.0 coiiAc::tlvely val

, the salc1 consignments there was no objection from the

m a

the time of import ancJ the goods had been clea

without a

unconditionally, and subsequently the goods were hc;;ld

confiscation but if the goods were not available for
fine could not be imposed under Section 1

(1). Tribunal's

decision in case of Shiv Kripa Is pat Pvt. Ltd. [2009 (

5)

'=c'"'-'-""

LB)] applicable held that rlne not I ble to b! lmpt:>swd u

Customs Act, 1962.

(vii) that both tt1e provisions had been wrongly invoked
since the same were not applicable to it for the reaso
Section 28( 4) stated that
not been levied or

"Where any duty

erroneously refunded, or interest payable

part or erront:ously refundefi, by reason
(a) Collusion; or

(b)

Any wilful mis-statement,' or

(c) Suppn~ss/on of

By the importer or the exporter or the agent or employee

exporter, the proper officer shan within five
serve notice on the person chargeable with duty or
been so levied or which has been

so short-levied or

the refunt1 has erroneously been made, requiring film

show

should not pay the amount specitied in the notice.

In the present

the Notlcee, admittedly, had no

was not an importer or the exporter or the agent or em

or exporter. Therefone demanci of duty from the notlcee wa

the eyes of law

(viii) that the noticee had not contravened the provisions
112(a) or 114AA, as alleged. lhe Notlcee denied the al
as incorrect, false an<j baseless. The department had failecl
allegations and failed to establish mensrea qu,3 the Notlcee
record any documentary evidence as to in what manner
Invoked, as cited above, in the present case had been co

Noticee.
25.2 Reply of Shri

Prashsint

~upta ( Ngticee No. 2}:

.2.L Sh. Prashant Gupta in his reply to the Show

advocate's letters dated 12.1 .2011 and 18.03.2013

(i)

that It was true th

summons were received

summons were duly replied and that he denied concern or

consignment or with any other consignment earlier im
Rajdhanl Crafts by anybody else; that in the
statement of Shri Prashun Jain there was no materia
present consignment

or

with the consignment imported

of M/s Rajdhani Crafts.

He had no concern with

hr!

activities or with Shrl Biplav Kumar wl1o had acted as a

consignments Imported n tht:!
(II)

furt~1er

me

he had sougt1t the

M/A

ri

~~ajdhanl

mlnation of

had subsequently retracted his statements before

had no concern with the

consignment an1j was not

that he was not an importer In the present case nor had

nor gave any instructions to anybody else for filing the

II

name of Rajdhanl Crafts nor adopted any moc1us operandi

of the goods in question In contravention of the provisions

(Iii)

that In view of the facts mentioned above, he be

charges leveled against him In tt1e show cause notice; th

pronouncement given in the adjudication proceedings by
been held that the statement of the co~noticees could

ageinst the other notlcet'! fc>r Imposing the penalty In the a

corroborative materiaL The retracted statement could
against the noticee for imposing the penalty. In the
had not been dlschargecl by the department as such the

was

to be penalized under the provisions of Section 112 or

ll

Custom Act 1 1962

(iv)

The noticee had not contravened any provisions

no declaration had been made by him nor had any concern with
of Sh, Prashun Jain or Sh, Blplav Kumar, Nothing had
seized from his possession or from his reside

al and

therefore, he was not liable to be penalized under

the CLJStoms Act, 1

, Section

B( 4) of the

at all as he was neither an Importer nor in past he had lrn

the name of M/s Rajdhani Crafts and had no

Crafts,

No goods were available for confiscation wh

previously imported in the nrlme of M/s Rajdhani

was not applicable at all; that he

may be exonerated

leveled against him in the SCI\L

Sh, Blplev Kumet" (Notlcee Nt:). 3), 'H' Card holder

Kapur did not submit any reply to the SCN.

25.4. 1

M/s Rajincier P Kapur, CHA (Noticee No.

the Show Cause Notice vide letter dated 2L 12.2011

sutJm
thro

Arora & Associates. They had submitted:

(i)

There was no allegation In the Show Cause Notice

that CHA was involved In tt1e Import of the said consign

spare parts of weaving machines or notlcee misguided Shri
clear the goods in the name of M/s Rajdhani Crafts

weaving machlnea or that

lm

had any Intention

N

government. There was no allegation In the Show

was to get any profit out of the Import In the

how

use

no allegation against CHA that Shrl Biplav Kumar filed

clearance before the Customs Officer with CHA having a
the same particularly when the

ranee papers were h~::J

Biplav Kumar which was evident from the fact

were never entered in the CHA's clearance

r~egister.

there was no allegation against the CHA that Shri Biplav

for clearance with the knowlecJge of the CHA which was
that there was no entry made in the CHA register about the same.
(ii)

It was very import to note ancl bring to

notic~:::

that

nee

of that event Shrl Blplav Kumat was nowhere to be rclund.

how Shri Biplav Kumar flied the consignment, how he met
how he acted In his personal capacity remain unanswered.
could not be held liable for something he was not aware
aggrieved as he was in the dark also needed to know that truth,
(Iii)

As regards proposal to Impose pEmalty, penal action u

of the Customs Actr

it was r10t clear in the Show

the penalty upon the CHA had' ~IJeen imposed under which

Act. Hence the penalty could not be Imposed which hfJcl

various cases by the
(iv)

and High Courts.

In view of the above It was

Involved in any kind of fraud. H

the Show

rly

estalJiis~wd

th

was

the allegations im

use Notice were

. Penal

waived off and he be exonerated from the

Personal hearing might

(v)

Ms. Harslmran

C:HA dlJrln9 the

co~jrse

le(j

granted before the final

t1

of the

ur, Advocate appeared on bdtalf M/s

of pG:~rsonal hearing held on 18.1.2.

1 a

additional submissions relteratln~J the same points made

submissions and also verbally reiterated the same.

25.5. 1 M/s OM Freight Forwarders Pvt Ltd. (Notlcee No 5) subm

the Show Cause Notice vitie letters dated

2.1 .

11 e:md 10.1

sutJmitted that in such cases gt::nerally authorizations for D.

within a day or two but it did not materia
practice in a trade they had
than their char~JeS.

th

time.

believe as they didn't

may have been a casual lapse on

but it was u ntendecj lapse, and also this act of

contravene provisions of the Customs Act 1 19

leacJ

wh

mig

of personal penalty on noticee. Further, that

Crafts were regular importers and their esteemed

In

on instruction of consignee generally employee of

D.O. without authorization from

used

consignee to save ttle time

occasions the due authorization from consigneE~ was received.

Sh. Sunil Kumar joined the investigation so
Identity proof by the notlcee hacl no relevance

th

innocence and non involvement and also no abatement in

case was established from the investigation which ap
show cause notice, wherein Sh.

un Jain had

ln
tH~Ic1

the fraudulent Import

25.5.2 In the show

no evidence for 6

the exporter or their

had IJeen brought to the

any acts and omission

ble

the confiscation

section 113 of the Customs Act The various cases were

1.4

wherein,

In absence of connivance/collusion

no charges could be proved viz.,(i

circumstances of the
of Custom

as was

Mumbai Versus M. Vasi reported in

(Tribunal Mumbai) and (ii) Nlrmala Rishl Vs, Comrn

New Delhi reported In 1

9(112) E.L.T. 287

I) a

Jalswar versus CC reported in 2006 (200) E.LT. 1 2 .

. 5.3 The notlcee admittedly committed mistake as the

ht

the extent that they did not insist for authorization from rnporter

not obtain Identity proof of the person who collected

that the noticee could not be held responsible for the
by importer and his

as mentioned in the show

therefore, prayed that the show cause notice be quashed a

initiated against him be dropped

25.6. Reply of M[s CMC Limited, ( Not;cee No ) :

25.6.1. M/s CMC Limited, (NotlceE! No 6) submlt:terl

27.01.2012 submitted that the show cause notice was

they were not liable to penalty under Section 11

and 11

1962. It was submitted that those provisions could

lnvo

circumstances such as when the party had deliberately eva

duty or had caused
deliberate or intentional

on their part, and tt1erefore

to levy penalty upon them.

13.09.2010, a copy

hacl

to revenue intentionally; th

In case of Bill of Entry No.

the G-card was not attached as on

By sheer weight of

nciden

~1a

U1is Bill of Entry

fraudulently and goods were atternpted to be smuggl

Entry, The function of the EDI service centre was
Import i3Ubmltted menul!lly lnlo electronic detEJ r
The service centre was not an agency to scrutin

docu

apprehend smugglers. In

service centre supposed

importer was registered with the ICES system/ they mig

Entry frorn their own premises without taking the

immaterial if the
furnishing of the

rd was not a requirement under the

the noticee places reliance on Customs Manual, 2011

procedure to be followed for clearance of importee! g
provides the list of documents

be filed along wiHl submi

for clearance of imported goods. The presence of mens-rea was

on 11

pre-requisite for imposition of penalty under

Custom Act, 1962, which had not b(-:1en

nd 1

blished In

show cause notice had nowhere alleged that the

Intentionally aided the commission of tt1

offence, nor had

notice alleged that the noticee had benefitted in any way

G-card. NoticE:~es placed rella

was placed on the case

v. Commissioner of the Customs, 2003 (153) ELT

held that the imposition

penalty under Section 11

presupposes an existence of an element of mens rea. The om

notlcee was r1ot liable for pmu1lty o

em abettor

knowledge of the offence as well as they had no ntentlon

exchequer by indulging n the offence of smuggling. This was
by the fact that the noticee dld not benefit from such
Therefore, the noticee did not have any intt~ntion to abet in sm
In the present case, the notlcee had nE;~lther

.6.2

intention to do any act/omission, w~1ich would render

to acting as

confiscation. Their role was

and they were not responsible for and did not indu
or under-valuation,

which

rendered

Specifically, the presence or absence

the

goods

llabl

rd did not render

for confiscation but it was the act of mis-declaratlon.

Slnct~

st:;ctlon 112(a)

or abet the mis-declaratlon of g

25.6.3

In any m

not

They further submitted that the statement

(Shri Prashun Jain) did not provide that they had

of smuggling or they

wen~

t~1e

benefitted in any way

smuggling. If they h<:1d been a part of tl1is conspl

Jain while providing names of other <Jffenders (Shri
Blplav Kumar) would have given their name also 1 but since
not a part of this offence Shrl Prashun Jain did not provide a
the noticee.

25.6.4

The impugn

show causes notice further

noticee liable for penalty under Section 117 of the

ebst:~nce

of l::!ny men1$rea on ttlt:!

tho Notlcee L

on the part of the Noticee

cornmlt tt1e offence

was not liable under

117 of the Customs Act,

placed reliance on the case of Tlrpur container Terminals (

of Customs, 2006 9110)

304, wherein It was helcl

v.

mens

was involved in the

id act and, therefore,

imposable on the appellants und(:!r Section 117 of

Therefore, no penalty was imposable under Section 11
1962 as well. The present show cause notice deserves
allegation contained in the show cause notice were not
25.6.5

In

the

presc;:nt case,

the show cause

had

demonstrated by way of evidence that they had

Intention to evade Import duty nor adduced any
imposition of penalty and therefore, tt1e proceeding
liable to tle dropped. They werE! not liable for penalty un

117 of the Customs Act, 1962 and t!1erefore should

proceedings initiated

dlsch

alnst them.

Recgrd of PersQ!lal He!rirwg:

Advocate Sh. Naveen Malhotra appeared on beht:'!lf

on

18.12.2012 and insisted on the cross examination of Not:lcee No,

Prashun Jain but duE~ to his non-appearance it could not

[~

Harslmran Kaur of M/s S.S. Arora

Rajlnder P. Kapur1 CHA on 18.12.201

nd

Associates a

on

and submitted additional

reiteratln~l the same. Ms. Dlsha Jain advocate appeared on

If

Ltd on 18.12.2012 and submitted additional submissions

ngh consLJitant represented M/s Om Freight

Sh. G.P.

personal hearing on 18.12.2012 and reiterated the written subm

earlier.

(i)

Further Naveen Malhotra, Advocate for Sh. Prashant

upta

t:j

12.02.2013 but cro!! .. exemlnatlon could not be conducted d

of Prashun

adjournment on
advocate,

S~L

Jain.

!n submitted a

Prashun

medical grounds. Sl1.

Sh. Tarun

Chawla

examination of the transporter/

Prashun

11.03.2013 and

on

. Kishan PaL Sh. Naveen Mal

on behalf of Sh. Prasl1ant Gupta and cross examined Sh.

the course of which he admitted that he had taken the name
Gupta only in

r1

second statement and that another narne .e. Mr,

statement and that the statements hii.~d

been taken in his fl

before the MagistratE! at th

(except

Biplav

12.02.2013.

Kuma

fi

opportunity. Advoce:1tes

reiterated
',.

the

submissions

(ii)

Further, Sh.. Prashun Jain appeared with his

examination of Sh. Kishan

lr Prop, of M/s Kishan Pal

13.06.2013. During the cross-examination, Sh, l<ishan

made In his statement at the time of investigation and i
appointed

a new person a month before for maintaining

Discysion & Finding{!:

27.

I have carefully gone through t~1e facts of the case

nd ora a

submissions made by the notlc:oes end their Bdvocates, I f:l

that have emerged and n:~qulre to be addressed are
impugned imported goods; liability of the notlcee for
Duty on the Impugned gool1s; whether goods are liable
Section 111 of the Act; penal action against Sh. Prashun
against Sh. Prashant Gupta;

penal Action against Sh.

action against M/s Rajinder P. Kapur; penal action

nst

and penal action aga!nst CMC. I am taking these issues one

(I)

I find that

w~1en

the Impugned consignment was i

Officers of Customs (SIIB) 1 Sh. Prashun Jain p

him

himself as the Proprietor of M/s. Prashun Jain, CHA,

91/2006 and holder of

~F,

rd No. 162/06 and informecj

consignment was cleared by Sh. Blplav Kumar

CHA. The gate

or

for the consignment was found In h

possession, and he informec1 that tl1e consignment

Memory cards of 2

. In h

statement dated 1.9 1

Bill of Entry was filed in the name of M/s. Rajd

these goods did not belong to f'i1/s. Rajdhanl Craft.
arranged parties who provicled flr1ancial
imported goods. Th

finance for this consignment was

Sharma and Mr. Manoj Srivastava and Shrl Raja would

same in Nehru Placer New Delhi. He further stated that

shipments of Micro SD ca
second

rnent datec1

and RAMs In the name of Rajd

11-2010 Sh. Prashun

Impugned goods wer'e Imported by Sh. Preshant

New Delhi but did not know h

Gadore House, Nehru

address but he resided in

to him for the last 3

r l l of RohinL Sh. Prashant

months, was Introduced to him

and Sh. Manoj Srivastava. In h

Act, 1962 Shri Kish;:,~n Pal, thE~

statement under
nsporter, had

Prashun Jain as Sh, Sonu Jain for the Last two years and
name. He had also stated that thE: subject cargo had

Jain himself on 18,1 1.10 for Rohlnl and submitted

wherein the entry was matie In the name of Rajdhani (
details like AWB and HAWB and Bill of Entry No. were
submitted a book showing the account of Sonu Jain. In h
Sh. l<ishan Pal, Prop. Klshan Pal Transport Service has

Sh. Prashun Jain and having tluslness dealings with him fo

da

was

confirmed the mode of transaction and confirmed that RU

list of cargo booking.

(ii)

Sh. Samir Agarwal, Partner of M/s. Rajdhan

statement had stated that they twd neither filed tr1e Bill
dated 1

Entry

11~2010 nor received any goods against the

ld

that he did not know Sh. PrashLJn J In, Sh. Biplav Kumar and
Gupta cHH'J never ht:td ar1y dealings with these
statement of Sll.

Kuldeep, consolidation executive

Forwarders Pvt. Ltd. that the Delivery Order of the lm

was collected by Sh. Sunil Kumar on payrnent
charges. Sh. Sunil Kumar was the G-

.311

rd holder of M/s,

Sh Sunil Kumar In ~1ls voluntary statement, tendered on

Section 108 of the Customs Act, 19

had, admitted th

behalf of CHA M/s Prashun Jain. Thu

the entire

showed that Sh. Prashun Jain was the mastermind l::~ehind

lm

involved In the clearance of the impugned consignment.

(iii)

I find that right from the

Impugned goods with obvious

dc~tection

reeumns

of the

no

of guilt and

liable to them. Sh. Prashun Jain was apprehended by

with the Gate Pass of the impugned consignment
the favour of the importer issued by the custodian of
him to get the Imported goods released. The delivery
document issued by the carrier to the consignee to ena
hand over the goods to the person named therein or any
lawful authority. In this case the same was collected IJy '
Prashun

in. Sh. Biplav Kumar has neither submitted any

any personal hearing during the proceecJings. I find that

Sh. Prashun Jain by facilitating h

use of IEC of M/s

registration No. of his actual CHA M/s Rajinder P. Kapur

Imports. Sh, Prashun Jain In h

first statamant

th

fi

consignment was made by Mr, Prikshit Sharma and Mr. Ma

Shri Raja would take delivery of the same in Nehru
11~2010

second statement dated

Sh, Prashun

impugned goods were imported by Sh. Prashant Gupta

Gadore House, Nehru Place, New Delhi but did not know
address but he reside(1 in Sector 11 of RohlnL Thus the
Jain is vague and not reliable on the role of Sh. Prashant
has not been able to throw any worthwhile evldenct::s so

role of Sh,

Prast1ant

Gupta In the matter. The entlfe

that Sh, Prashun Jain ha

dS

In

masterminded the import of th

and has infact either himself

or through his '

substantive action for their

ranee including obtaini

and possessing the gate pass,

(iv)

I have further noticed that most of the noticees includl

t11mself have relied upon the

ct in their defence that

retracted his statement dated 19,11.2010. As reliance

demand cum show cause notice has been

I consider that it is n

laced on thls

ry to address this

Sh. Prashun Jain regarding retraction of his statement

not sustainable as the

rnlsslon of tl1(':! offence nu1de un

the Act Is a substantive evidence in the facts and

rcu

statement(s) have been tendered voluntarily and there

establish U1at the same have

obtained under duress,

no reason to ignore the evidentiary value of the same.

Hon'ble Tribunal In the

of Mysore Chipboards Ltd, vs

reported In 2012(282) ELT (Trib.)

held as under:

"We have considered the above arguments and

Commissioner, The demand of

237, 298,

60,

in

and 406 for a value of Rs, 3,

Commissioner based on the submissions by Shri

Umeedmal Jain, bath employf!fi!S of MCL Their lnlth'"ll,
retracted, The retraction !Jef'ore the notary wlt'hln

few

statements was not made known to the department.

statements recorded on 28th AuQust, 2003 Wcls made only
Show Cause Notice

functionaries of the
showed particulars

on

.l6 1-20Q6,

The

IOM

and recovered from one

or bills such as number, amount,

memo reflected

corresponding

!OM was hl,gher compared

value

corresponding

were verified . .5hrl

54.56o/o. The inV:olce

that the actual value

Invoices.

Wl!JS

higher than t!Je value shown

invoices. DlffereA1tial amounts were collected by

manager and tr~nsterred to
Notice, figures oAJpearing
Commissioner

company, In the
the right side of the IOM

q~oncluded

undc::Jrva/uatlon

based

assessee's employees. The retraci"/on filed before notary

note that in thlt following decisions, it was f1eld
statement given before an officer of Customs/Central
as a retraction only when It has been made

Retraction before

other authority or notary can

d111y It Is submitted

retraction ml!lde ionly on

Department or the Adjudicating Authority.

Prithvir~1j

(I)

Chennai [2006

Kawad v,

(ii)

Ashraf Pu/fyulla ParamlJil v.

(iii)

Em Pee

International

Chennai

v.

704]
(lv)

Tejwal Dyestuff Industries v. CCE, Ahmedabar:J

(LB)]

As regard$ the statements furnished by the employees

they are admlssrible in evidence when found to

any manner as held by

Bulsar [1

volun

Court In Btu:uu'

C)]. Therefore, the

S/Shri K. Shrid~1ar and Umeedmal Jain are

Ltd. [2003 (1

141 (Bom.)], it was held

material on reqord was required to refuse and

under

statute. Jn Govindasamy Regupathy [1

High Court held(i that statements made under

Officer were rqgarded as voluntary and not to be

Retraction of s~ch confessional statement did not affect

It was not es4ablished that the initial statements

duress, .In the ~:ircumstances, dE:mand of Rs,
do so."

(v)

Further the: noticee has contested that the

has violated l1is flundamental rights enshrined un

of Constitution

India,

Hon 1 ble High Court of

of Gujrat

reported In 2012 (282) ELT

held as under:

"31. The principl~ of law explained In the

for t"ha petitioner

upon by the leanned

should be applicf:!ble

lie

all

same remedies should

persons within

made available to them,

circumstances. In all the judgments,

principle

that Is that all the persons similarly circumstanced shall

in privileges contt;rred anci liaiJilities imposed.
32.

No action srwuld treat unequals as equals

violative of Article 14 of the Constitution of India. In

"20.8 In Special Court:s

In re, (1

Court stated various propositions which emerge

to cases arising 4mder Article 14 of the Constitution.

may be referred

"(4) The principle underlying the guarantee of Article 1

rules

law sho41/d t1e applicable

that the same rremeclies should

differences of

~;lrcumstances,

circumstanced s~Ja/1 be
imposed, Equal kiws would

all persons within

made available

It only means
alike both ln privileges

ve

be applied to

there shou/(J be no discrimination between one person

regards the subject-matter

legislation their position

same.
(7)

The classificJ;atlon must not be arbitrary and must

say, it must not;only be

on

found to be in a~J the persons

together lJmi

out but those qeJallties or

the object of'

must

legislation, In

fulfilled, namely, (1) that

qua/lUes or

to pass

classif:lcation must

differentiation which c1istlnguishes ttwse that are

others anct (2) tl7at the differentia must have a rational
sought to be achieved by the Act.

st:trne

(8) The differentia which

the basts of the

tlon

the Act are diffenent things and what is necessary

nexus between t/1jem, In short while Article 14 forbids
conferring penalties or Imposing !labilities upon persons
out of a large num/J(:Jr of other persons similarly situatecf
penalties sought to be conferred or the liabilities
does not forbid ielassificatlon for the purpose

legislation

classification is ncpt arbitrary In the sense above mentioned,

38.

To pass th~ test

permissible classification,

fulfilled, namely,: (I) that the classification must be founded on

differentia which distinguishes persons or things that are
left out of the group, and (II) that

from those that

have a rationale /elation

to

to

the objects sought

In question. The fundamental principle flowing from the

by the petition~r Is that Article .1. 4 forbids
reasonable classification
must satisfy

tfre

the purpose of legislation

above

twin

tests,

The

Government

affirmatively satlsty the Court that the twin

that the Government must establis/7 not only

had

a rationale

classification

founded but the Government must

objects sought

be achieved. If this cannot

then the departure was arbitrary, irrational, unreasonable ami

The only olJject~'ve sought

be achieved !Jy restricting

extent of 1 0%; for Inputs

the nature of petroleum

manufacturers :Purcf1aslng sucf1 petroleum

refineries the crtJ;;dit

that amount which was actually

duty, Since du~y only

manufacturers

product~

to the extent of .l Oo/o was

refineries wfuareas 5o/o was paid

Pool Account fri,ght from July

1996, the restriction

No. 14/97 was ly7ade for allowing Modvat credit

this Notification' issued on May
July

1996

By virtue of the clarifications made

Notices, the

23, 1996 in

1997 was given

restricting Modvat credit to

of APM products f. e. petroleum

public sector relfinerles was clar!fleci by the Government

the amendmen4s so made vide Notification No. 14/97

F1m.mce Act, 19:9 7

WBs

and manufactured in India

ModvDt credit
thus an undisputable position.

APM products, i,e, inputs imported on payment

full

the objective wascrwt achieved and the amendments

with imports of tJfi!troleum proc1ucts at full rate of

Thus I flnq that in

guarantee of Arti~le

instant case, the prlncip

Is that all persons simi rly

treated alike botH In prlvl

rcu

conferred and llabl

would have to be applied to <JII In tt1e same situation, a

discrimlnatlon between one person and another having
matter of the le;gislation, The noticee has not explai
fundamental rights enshrined under Article
Constitution of Inpia

been violated,
in

In the caseof MeL Sukum ali vs, State of Assam

the opinion that even assuming that

does not

case against the accused In the absence

counsel a

e cou

ppear because of the cou

or deliberat~ly, even then the Court should

accusec:l In

under:

ELT 0032SC held

the

and

not
his

criminal case should not suffer

in such a situation the Court should
to defend tl1e a

liberty of a person
Constitution. Article
personal

li~erty

the

most important

1 wt1lch guarantees protection

Is the most important fumlamental

funcjamental rights guaranteed by the Constitution.

be said to bte the 'heart and soul' of the fumJamental
Hon'ble HiiGH

RT OF E~OMB/\Y in the case

vs.A. K. BI\IG, ASSTT. COLLECTOR OF

NTRAL

(Bom.) held as u1nder:

th'e reasons

above, applying

in the afoqesald decisions, It

not possible

Mucha Ia th~~t the right of speedy trial

ancl circum!ptances of
the prosecqtion was

been

present case. The

in proceeding witt1

attended, tf7elr depositions came to he

where complete lel11argy anci inaction

prosecutiOtl Is the

to me that, partly

for delay. On the other

of the criminal

rJefence taken that the

and partly

by the

delayed,

Supreme
who

known defence tactic More

offences

are on bail. In these

on

possible to
time has gc::;ne by

the grounct

the institution thereof. In

conclusion, J have also noted the seriousness

an f.conomit offence,
the basis off the
it

of Central

When Evasion of Tax and

not petmlsslble to apply the mandate of

speedy trial in a mechanical manner. This

be termed :as adversary with which only parties

Involves a r;tuesUon with which society and
also concerned.

contentions

Mr.

aspect are

25, Equal(y untenable

next submission that

as applicants

not dlsclosf! any

descriptfoni of applicants

not been

nomenclatqre of the afJplicants

officer

only averment in the complaint Complaint

that as Vl(orks Manager and Secretary,
responsible to and in charge of the affairs/business
respondtm, In t'/7/s behalf, ft
specifically! refer

to the staternent of th~.:1

of the

complaint is perusEH1

Jf

statement,! It

not a case where there Is a mere

language thereof. Acts

section or !reproduction
commission
to. It

mater/sf to

on

the

of' officers concerned l1a

therefore, contended that the

company are responsible

doing so,

have violated

tf7e evasion

breaclu::d
are responsible

with

procedur~71

the complaJnt it

'\..

from: the

and otf1er

averred
In

authorities, It has
Nos. 2 ancf 3 who were

out.

under :
carried

ascertained and tJS

are the

the

ve

f\1/s.. Asian Electronics Ltci.

of the said firm

duty on the

payment of

not accounting them

Electronics
records .... ".

If the complflnt is perused, with other material,

the Act of d/r;poslng of

goods

of Central f:tctse duty, the company as

Works Manaf]er are involved. Frorn a reading
is not possible to
482 of Cr..

with Mr. Muchala that power

In tflis cast:

C should

proceedings as t'he same

offence on

(vi)

not

part of the applican

in such cases of

In view of

proper to apply

Article 21 as the n

mandate

nal liberty. Show

illustrate dangers to his life and

Sh. Prasllu

upon in detail th~~ acts of omlsslcJn and comm

his accompl

which

rendered
not only a
'
'

Government Exct1equer but a serious tl"1reat to the econo

(vii)

Further the. noticee l1as contended that he has no

!l

case as the Bill of Entry was not in the favour of his

nothlng to do witt1 the consignment. I find that at the
investigations

lnitiatecl on

groun

of

udu

usc of na

U i.e. M/s Rajdhani Crafts Ltd.

collusion with

Sh. Biplav Kumar, an employee of M/s

When Sh. Prashun Jain was apprehended along with th~;~

N201011180549

of the Impugned consignment

purportE~d

in

the clearance gate of examination

M/s Rajdhani Crafts

18.11.2010, them Sh. Prashun Jain immediately revea

Officers the

dated

contents of the consignments ;:~s

19.11.20

16.11.2010, the

rd

copy

of E

of Bill

ppller's invoice along with the packi

on the p

the same being with Sh. Bi

Further Sh. Biplav Kumar did n

penal

rmrna

consequer1ces of th

19.11.2010, Sh. Prashun

join the

frauclulent lmpo

h.

in stated tt1at he had an

Biplav l<umar to ~)perate in the manner found out during

Prasun Jain was to provide tt1e financial assistance and
imported goods ~nd

h. Biplav Kumar was

arra

en ranee

Impugned consignment was collected by Sh. Sunil Kumar,

Prashun Jain ('G'

rd holder

M/s Prashun Jain,

un

(viii) In view of the foregoing 1 the contention of

tenable

19,1L10. From his said

the actual Importer and he was

sale and purchas~ of such consignments of Micro SD

caught committi

the

ud on revenue he has no

technical ground$, which ~1as no authority as long

offence exists,

R~llance

on the d'!clslon
hi), which I

reported in 201
"Evidentiary! value
20.

Following the

laid down In the

State of Maharashtra, AIR 19

(5.

the statements

formally

ar:;cused

Constitutional

the
were

not

were admissible in

were recorded under

course

11

of any

14 of Central

judicial proceeding.

That

modus opetandl of appellants without ruling

with the deposition, The

In the

to the governance of

of the appellants

proved by l!;:haln of evidence gathered by

or

goods explains

unamblguo4,1sly, his statement

reliable being

associated i with a

was based' on cogent evidence but not

suspicion. :Revenue
appellants. ; Involvement

appellant in

premeditat(fd design realizing higher

embossed on the

packets was

links of versions In
appellants !from the
recovered
Revenue /eJtad

the

statement
ve of offence.
and

Irresistible conclusion

adopted by: the appellants for their unjust

Revenue,
obviously

probability, and the

In terms of

n
n

whole of the modus operandi was

Prashun Jain

enumerated

such units

to how

an unmistakable

reasonable doubt

of probability

the evaluati((m

the statements

proof, In view of

same

does not

to

Departq1ent
mathematlciitl precision

a demonstrable

human affairs absolute

is

felicitously puts

is

myth,

proof being unattainable,

1

working su~stltute In
the

require the prosecution

Impossible~

is the estab(ishment
man may,
Thus legal
more than

as

case, The

cardinal principle having an

the incldend;e of burden

proof is that

ffle
in Blatch v,

~e

Cowp,

proof which, it was in

power of

power of one
contradicted",

difficult, if

impossible

facts which

especially within the knowlecfge

the

It

not obliged

prove them as

to unravel
appellants proving their
relating

remained in

knowledge
simply did
several

In
adjudla;te

matter on any
governing

circumstanc(;:Js were basis of the adjudication. Echoing

series of factors

several circumstances were

Conduct of fhe appellants also contributed for the

learned Adj4Jdicatlng Authority against the appellants.

(ix)

Thus In vie:t:w of the above I find that admi

is substantive etvidence for the pu

Customs duty

ard

on by

of determi
on

penalty proposed in tt1e su

of Sh. Prashun Jain about the lack of evlden

except statement i

not

clandestine activities II
prove the cha

able. I find that It is well

smtJggllng, departmE:mts cannot
ble doubt

to the guilt beyond all

n the preponderance of probabll

1

Sriyansh Wootle'1 Mills Pvt. Ltd Vs Collector of

(Tri-Delhi) which! held as un

no

"6. We agree wrth the lippellants herein that there

available against them which would indicate

culpability

importation of the goods. Nevertheless, there are

go against the ~ppellants' Innocence. Plrstly, the
thE~ goods and

suppliers lwve wrongly

cheatecf is not borne out

they

the subsequent action

against the suppliers. Apart from writing letters

fulJve been brot.4ghC rorl/1 on

to the

by the

action has been! taken !Jy the appellants against

bona fides. It
suppliers who

yet another coincidental circumstance

sent the

committed the mistake

in Identical manner i.e. polyester fibre being

by one supplier and again polyester fibre being sent lJy the
partly In lieu of

staple fibre

Ajlt Kumar's statement dated

last but

one

1 ~1985). Further

statement of Aji~ Kumar Jain that the deal was struck

suppliers although for the sake

formality, indentor was

It is well settlf$d, as rightly pointecl out by the learned SDR1

Court's judgmept in

D.

Bhoormul's case mentioned supra

clandestine activities like smuggling, department

the charge to the guilt or beyond all reasonable doubt.

be found on preponderance

In view of

that the appella11ts are liable to penalty under Section .1.1

1

(x)

Further,

Prashun Jain

ming for the purpose of argument

he was only responsible for

goods and the arrangement

is pertinent tcJ
came forward to

the procurement of

that no person whom he

the Impugned conslgnm

Jain remained as a Custom House A~Jent of the anonymous im

proposition, Sh, Prashun Jain

the status of Importer nd

for evasion of dutiy, In terrns

Section 147(3), if n

act, negligence oq default, he would alone

conferrec1 with thE!! status

Act 1 1962. Reliance

an importer uncler

placed on the decision of Hon

Hetreo Drugs Ltd. vs.

missioner of Customs,

2004(168) ELT 2~1(TrL Bang.), which

"12. (a)

na

in

held as un

The li~tJility of a principal i.e. the

the acts committed by the

i.e. CHA

reference to the bona fide

committed by the

fide acts comm~tted lJV

Agent or the Custom

examination of S~ction 1

the Customs Act, 1

147(1) of the Customs

contemplates that an

owner, importer t:"Jr the

things which

importer or the

Section 147(2)

thing done by an agent

unless the contrary is

have been done ~IVith the knowledge ancJ the

etc, Therefore, ah lmporter
were in excess

establish that

the authority given to him. If

terms of the
liable. In terms

llab!e

set out

Section 1

Section .1

an agent

Importer of the gc;>ods In addition

t'he lll?bll!ty of the

Section 147(3) s1tes that if a short-levy or a non-levy

which is not wilful in nature on the part of the
recovered first frcpm the ownf::r and then from the agent.
the abovE] provlsYons would indicates that' in
agent is guilty of wilful

negligence or default, he

pay duty, having been conferred with tlu~

147(3)
(IJ)

the

an

Act~

The openlng!portion

141(1) of the

tlwse actions whll:t1 the Customs

Section 46 of the~-:: Customs

requires an

1962 requires an Importer

for home consumJ,ltion

the goods or for warehousing in tfle

of the

Section

-1962 requires the

entfJred for warehousing~

in case the goodst are to

twice of the dutr

goods and to

formalities. The

others unknown

of the

goods and in faf<lng the Bill

Entry

not

expected to do Uf1Jder the Customs Act, .1962. In

from the factual position

in the show

undertaken by M/s.

Port International in
done by Sf1rl Rames/1

forging the documents were

assistance with persons other than the Importer.

The department

ving come to the conclusion that

been committed

Shri

reported to have

Ramesh, Proprietor of

the appellants to recover

duty, which in

cannot entitle

on

t11em alleged

stand paid and

to the

That a principal is not to tJe considered guilty

(c)

agents,

see Bombay High

law,

Shashikant & Cor'npany and others v, UOI reported in

(Bom,). Therefore, provisions

tained in the proviso

the Customs Ace would come

play If the CNI\,

malicious activity;,

the following

been settled

(a)

K.M. Mohart(led Ghouse

(b)

Commissioner of

v.

ACCE [1

Cochin v. Trivandrum

{1999 (1
(c)

Pi/men Agents Pvt Ltct. v. Commissioner

(1

(fylad.)}

(d) The demand! in this

1

That a demand

is rnade under Section

recover customs l1uty can

Section 28 and not uncler

out !Jy the

the case of Pilm~n Agents Pvt

reported in 2000

an

Customs,

v. Commissioner

79 (Mad.) and

coulcJ

agent is a

(xi)

Further in view of the provisions of Rule 3( 4) of

(Determination
that, "If the val

Value of Imported Goods) Ru~s~ 200

nnot tJe cJetermin

uncjer t~H::

),

the value shall b~a determined by proceeding

uentially through

9". Thus In the instant case the value of

of Rule

determined in

of the Rules Ibid. In view

the value of th~ seized

67,29,000/~

assessment pu

imported vicje

basis of ttle val

C)n 1

impugn1~d

Bill of Entry, has

imported at ttl

of similar

Accordingly, duty leviable on the seized goods

and if not paid,

recoverable under Section

Further Shri Prasl1un Jain in his statement recorded under

Customs Act, 1962 has

that apart from the consicJn

Customs, they had

-3 more such shipments

modus-operandi earlier and out of the three Bil

pertaining to o

Bill of Entry 1613385 dated 16.1 L 10 was

officers of SIIB on 18/19 November,2010 !:Jut

previous two Bi

of Entry nos. 991362 dated 13.

13.08.10 were a ready clea

.10

, the value and duty of tt1ese

had been correctly calculated on pro-rata basis with reference

and value of the shipment seized by the Customs on 1
The value of
28/67,517/-

shipments amount to
anrj

respectively and cjuty works out to

33,64,269/- respectively.
(xil)

In view of the above discussion ar1d findings, on

conducted

with

M/s

Rajdt1ani

Ltd.,

!Jasis

nd

circumstances an1d documents on recorcl like impug

Pass, transporter's dally

rd and Panch nama dated 1 . 1

that the name and IEC number of M/s Rwjdhani Crafts, a 1

misused by filing the a

mentlcmed three

lis of E

knowledge and ~onsent by fraudulently using their name

with a non-exist~nt Delhi address by Sh. Prashun Jain
have further

that in his statement before

Jaipur partner
they clid not file

hani Crafts had

II of Entry No. 1

against the said Bill of Entry

dated 16.11 . 10

ncl that he did not know who had fi

Bill of Entry. He furtt1er denlt~d havin~J any

authority for

of imported goods to anyone

EXIM Services, M/s P.M.

Ltd, He also denied th

ew

h. Prashun Jain, Sh.

Prashant Gupta cmd tiealings wit~1 th

persons.

(xiii) Sh. Biplav Kumar has not joined the investigations

use

of offence/ whid1 confirms the culpable act on their

in the Instant

Sh. Prashun Jain is guilty of frawjulent m

supra and Is liable for payment of Customs Duty of

same is recoverable under Section

(4) of Customs

Prashun Jain as discussed supra has rendered the impug

confiscation undEir SE~ctlon 111(1),111(1) and 111(m)

nd

imposable on him under Section 114AA . Tl1us Sl-1. Prashu

with Sh. Blplav KL/ml:!lr hl:!ls abetted the evaslnn of
he imported the impugned mls-declared and underval
benefits of 100/o EOU and therefore, is liable to penal
l12(a) and Section 114AA

r I fi

the Customs Act,

goods under onel Bill of Entry i.e 168385 dated 16.1 L

are available for redemption~ but the goods under

0 were

other Bil

994768 dated 13.09.2010 and 168629 datecl 16.11.2010 are

ava

confiscation unde~ section 111 (1),(1) and (m) of the Act.

(xiv) Sh.

Prashu

masterminds for

in and
~the

Rajdhani Crafts,
day of

Biplav Kumar have con

above fraudulent import by misusino the I

ipur with intent to defraud tile

interceptlo~1,

even before examination was carried

told the SIIB officers that the consignment consisted

that he was awa

of the actual contents of the shipment.

Customs was being arrangel1 by Shri Prashun

in

plav

shipment was me~3nt for Shri Prashant Gupta. It has been al

Cause Notice that Sh. Prashant Gupta, is the owner of
stated by Sh. Prqshun Jain in h
Customs duty by
and by misusing
is the main

porting

Impugned mlsdeclared

nf:i u

00/c1 EOU scheme in connivance with

mas~errnind

investigation had

statement and h

t1.

behind this conspiracy. However

lied to bring the involvement of

Impugned import to the fore. Except the statement of

other corroborative documentary evidence was un
Investigation. Therefore I find that tl1e penalty ~gainst

h~

under Section 112 and Section 114AA is not mposable.

28.

That Sh. Blplav Kumar, 'H' Card Holder of CHA M/s

facilitated Import I of misc1ecla

Card and RAM, Further he

and undervalued
also absconding and not

1 2

also lia~Jie to penal action un

Deptt Therefore he

Section 114AA off the Customs Act 1 1962.

29.

Sh. Rajind~r P. Kapur, CHA has contended that l1e

knowledge of such fraudulent Import and he was not i

impugned papers. He has

contended that the

any evidence to ,show any rnalafide intention

does

or h

have observed t~at Shri Rajlnder P Kapur, Proprietor

his responsibility in getti

Kapur did not

the H

Kumar renewed pfter its expiry in 2008; that he shou

to cjo company VJ'.'Ork, but lnste<Jd issued a letter dated
head addressed to the Security Manager (DIAL), 101
grant of

permpnent pass for the shed examination

is therefore also liable to penal action under Section 11

the Customs Act 1 1962.

30.

The contention of M/s Om Freight Forwarders

evidence of tt1ek knowledge about the intentions

being undertake~~~ by St1. Prashun Jain and thus th
an abettors of the impugned irnport under

can

not reasona

Sh, Kuldeep actecl in a an

Consolidation

t1e

rt)itra

following the obligations vested on them for lawful im

document issueq by a carrier of goods to the

consigneE~

hand over the irmported goods to person named in that

person having lawful authority for possession of

document of title to goods covE;

thereunder. Through th

the title of the goods is transferred by the carrier to th

Giving the Dellv~ry

person

recelvin~!

Customs Duty
situation so as

rc1er to an unautt1C)rlsed p!:!rson Is ha

the impugned goods in order

nd Uws leaving the Customs a
recover the duty from the real importer. Hon

in the case of Cqmmissioner of Customs, Banglore vs.

2009(244) ELT ~04 (

"24,

r.) has helrJ as under:

The question as

particular place

and it cannot

owner

whether the Customs

otherwise

said

rft:~pends

on facts and

tttat the authorities

which the breach of customs barrier had occurred

and to contend tt1at

in a situation where the

a particular plaa;::, which In the instant case is

authorities to unearth the occurrence of breach

adjudication has

.to be proceeded at the place where the

fallacious inasmuch as a

have occurred. /.:his contention

up as it has occurred in the Instant case where the

fictitious person C~nd in such a situation It would never
person who despt;Jtched the
of the Instant

seen from the

cetse we find that the consignor was

Company/! and ccJnsignee was "Samsuddin Bfwiu and the

took place at nM/s. Deluxe f~oadlfnes Private Limited,
follow up action

tw

the seizing authorities namely revenue

cross checked with their counter parts i.e., Joint Director

Intelligence, Murnbai to verify and ascertain about
genuineness of the consignor which was found fJy them
in such a sltuaticjln it cannot be said that the
ought to fail, and such visualisation ought not to
scheme of the Customs Act when examined on the
Custom duty on the goods and checking the evasion
is examined it betomes fallacy In drawing logical conclusion.

25, .In this factual matrix when we examine the contention

that adjudication :has to fall on account of non loccJtion of
customs barrier

by

the authorities, we flnd that only

drawn in all su4:h situation

that the consignor/recipient

himself/Itself could have booked the goods as consignor

order

to evade pifyment of Customs duty and hence it

a situation as we. are faced with

direct the authorities

place of breach of" customs barrier and only thereafter

proceed. This wdu/d result in driving the authorities
incongruous sltuqtlon, Nence it would be proper to
whole in Its true perspective
Revenue and in such a

in such a manner as
the action of the autt1orfties

lJurden is on the person from whom tl1e goods have

who claims to be the owner of the goods to prove that
been seized had suffered cfuty or that It was not
purchased by val,id documen

which are all matter

justified,"'
Further Hon'ble Tribunal in the case of Inland Road
(Prev.) has held
"3,

under:

The Revenue relied upon

decision of the Hon Fble

in the case of Ct:Jmmr. ot Customs (Prev.), West'

\l,

Nyollywala reporttr:d in 2006

case nobody is taking responsibility of the goods,
are smuggled goods and the Hon

High Court held

duty bound to verify contents of consignment and fJiso

1

and addresses of consignors. The Hon ble High

penalty on the tramsporter is imposab/e under
4. I find that in this case the confiscation in
194/- claimed by M/s. New Heera

valued at Rs,

also set aside by the Tribunal In the appeal filed by

Corporation vide Final On1er

No.A~624/Kol/2009,

(250) E.L T. 377 (T)]. Now, the only three

25,000/- were remained un-claimed. The Hon'ble High

Suresh Kumar Ny(J)I/ywallt'1 (cited supra) held that the
penalty under SeC;tlon 112 of the Customs Act, 1
goods not disclosing their identity

claim

charging transporter f(Jr non-delivery of goocts. In view

I find that the af)pellants are liable for penalty under
Customs Act In

of

of consignment is
thousand only)

un-claimect consi,gnments.

000/-1 tlu::refore, penalty

wm meet the ends of justice.

Penalty

(Rupees five thousand only) on the appellants, The

appellants are entitled for

fnclicated above.

accordance with law,"

(i)

The above decision is squarely applicable to the

Importers have
Forwarders Pvt

no~

dlsclosecl their Identity. Thus 1 find

L~d,

acting as a forwarding agent of

handed over the q1elivery Orcler to Sh. Sunil Kumar,

11

Prashun Jain without proper authorization of actual title

Rajdhanl Craft.
receiving

Th~y ~1ave

the said

also failed to verify the antecedents

Delivery

It cannot

investigation to ppint out tt1e ulterior

motive of the

exactness as held by the Hon'ble Higl1 Court of Karnata

Commissioner of
Kar.). Therefore,
c!ocuments, I find that M/s

Jain reported in
of the
M Frei9ht

statements,
Forwarn=r~..:

Forwarder gave the Delivery Order to an unknown

witllOUt

antecedents and without taking authorization from consignee

Rajdhani Crafts anc~ handed

the D,O, on the strength

an authorization

nd has thus abetted the unlawful import

consignment in connivance with Sh, Prashun Jain and

penal action under; Section 1 2 and 117 of the Customs
3L

M/s, CMC hq~ve contended that they are only an

operating and mamaging whereby it converts manual data l

and providing the Bill of Entry Number. They have further
the Act are not

provisions of section 111

penalty

nnot be :imposed under Section 112 of

of the case and

bmissions of the noticee I have

rt of CMC staff but no el

there is negligence on the

nothing on record to

appears to be existed, There

benefited from such contravention, ThE~ omission on part

liable for penalty

an a!Jettor as the notlcee had no

as well as they h

no intention to defraud the exchequer

offence of' smuggl1ing, As such I find that penalty against

Section 112 and 117 of the Customs Act, 1962 Is not lm

32.

lJ

In view of th1e above discussions, I pass tile

The value of 1 the

goocJs (28998 pieces of Micro

RAMs) having decla

under Bill

assessable value of'

Entry No.1

Rs.67,29,00(0/-. The same

111(1) & 111!(m) of the Customs Act, 1962, However I
Jain an option to redeem the said goods' on payment
of Rs.lO,OO,~JOO/- (Ru
2,

Ten lakhs only).

I reject the declared

ble value of the goods

of Entry No. 991362 dated 13~09~2010 and 9

under Rule .12 of Customs Valuation (Deterrnination

Imported GC:lods) Ru

2007 and re-determine their

3,88,58,788/= under Ru

3.

I hold the goocls

13.09.2010 and 9

the Ftules, ibid;

under Bills of Entry

dated 13.08.2010,

3,88,58,788/- liable for confiscation under

111(m) of

e Customs Act, 1962.

available for confiscation

no

order imposing

passed at this

In view of

preme Court j

Commissioner v5pc. Finesse

4.

210(

I demand and drder for

of the diffe

Bills of Entry No. 1

and

957813

Rs.

dated

11-2010,

amounting

,636/- . and

64 1

Act~ I

Rs.67,17,015/- 1 under Section 28(4) of the Customs

Prashun Jain.

5.

I Impose

penai~Y

1 ,01

of

Sixty
112 of the

Thousand Fifteen only) under

on

only) under Setion 114AA of the Customs

Jain.

6.

In view of the
Prashant

I refrain from lm

of the

upta under Section 11

and Section

Act, 1962.

I impose penal~y of
112 of the

0 00

Act, 19

and

. Two La
. 001000/- (

under Section 114AA of tt1e Customs Act, 19

card holder of qHA M/s
8.

I impose pena

of

lnder

)
'H'

on

pur;

.1,00,000/- (Rs. One Lakh on

1l2 of the Customs Act, 19

under Section

on

and

14AA of the Custom

1,00,000/- (
Act, 19

on

Kapur;

9.

I Impose pena

of Rs.

11. 2 of the

Act, 19
of

under Section

,000/- (Rs. Two

and

.2,00,000/- (

Customs Act, 19

on

Forwarders Pvtk Ltd.

1

In view of

of

CMC Ltd., undejr Section 11

I refrain from lm
and Section 117

COMMISSIONER

on

. Jc SPEED
/

1.

L REGD.

POST

Sh. Prashun Jain, B-5/109, Mayur Apptts., Sector-9, Rohini, New Delhi
110085.

2.

Sh. Prashant Gupta, B-7/16-17,

Floor, Sector-11 1 Rohini, New Delhi -

110085.
3.

Sh. Biplav Kumar, RZ- 744/31, Gali No. 14, F-Biock, Raj Nagar-II,
Palam Colony, New Delhi

. 4.

110045.

M/s Rajinder P. Kapur, Pulpahladpur, Near Sari Masjid, M.B. Road, New
Delhi-110044.

5.

M/s Om Freight Forwarders Pvt. Ltd., 847/2, Main Vasant Kunj Road,
Mata Chowk, Mahipalpur, New Delhi- 110037.

6.

M/s.CMC Ltd., New Customs House, New Delhi- 110037.

Copy to:

l. The Chief Commissioner of Customs, NCH, New Delhi;

2. The Additional Commissioner of Customs (SITB). l&G Commissionerate. "Cll

3. AC/DC (Recovery Cell) I&G Commissionerate, NCH, New Delhi

4. The Superintendent (Hqrs.), Customs (Import & General) Commissioncrate, New
Custom House, New Delhi for display on Notice Board;
5. Guard File

Page 39 of39