S/O Late Shri Bhagwan Singh vs C.C.(Preventive), New Delhi

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether Lordships wish to see the fair copy of the order? Seen 4. Whether order is to be circulated to the Department Authorities? Yes

Appeal No.C/623/2009-CU[SM]

[Arising out of Order-in-Original No.11/COMMR./HKT/2009, dated 30.06.2009 passed by the C.C.(Preventive), New Delhi]

Shri Nand Ram

S/o Late Shri Bhagwan Singh Appellant

Vs.

C.C.(Preventive), New Delhi Respondent

Appearance

Shri M.C. Sharma, Advocate - for the appellant

Shri Devender Singh, DR - for the respondent

CORAM: Honble Mr. R.K. Singh, Member (Technical)

Final Order No.52155-52156/2015, dated 10.07.2015

Per Mr. R.K. Singh:

Appeal has been filed against Order-in-Original No.11/COMMR./HKT/2009, dated 30.06.2009 in terms of which, inter alia penalty of Rs.1.5 lakhs was imposed on the appellant under Section 114 of the Customs Act, 1962 read with Section 4 of the Antiquities & Art Treasure Act, 1972 in the case of attempted export of 12 terracotta panels mis-declared as gear cutting machine parts. The consignment was booked in the name of M/s. ICI India Ltd. The consignment was brought to the IGI airport air cargo complex from the godown situated at Mahilpar Extension, New Delhi taken on rent by Smt. Rama Jain and the same was managed by Shri Rajiv Gupta, Mayur Vihar Phase-I, New Delhi for storing antiques. The appellant abetted to be attempted export in as much as he along with Shri Rajiv Gupta were taking delivery of the antiques and subsequently getting them packed and ready for export, he was the person who recruited Shri Sanjiv Rana for clearing the export consignment through Customs. It was on his advice to Shri Sanjiv Rana to use the IE code of some well known company for the export of their consignment as they were not having any IE code number. This indicates that Shri Nand Ram was aware of the Customs rules and regulations and was mainly instrumental in getting the consignment of antiques cleared through Customs by using IE code of some other company and mis-declaring the goods as auto parts. In his statement recorded under Section 108 of Customs Act, 1962, the appellant admitted that Mr. Rajeev Gupta hired him and told him that both would be packing statues (murtiyan) and auto parts that he contacted Mr. Sanjiv Rana for customs clearance of the impugned goods that he and Mr. Rajeev Gupta were taking delivery of the consignments at petrol pump, that he was managing work of packing consignments in wooden boxes after taking the consignments in tempo from Jangpura to Mahipalpur that he was getting the paperwork done for exports.

2. The appellant has contended that he was only an employee of Mr. Rajiv Gupta and whatever he did was at the behest of his employer and was not aware that it was illegal to export antiquities. He said that he was only a messenger/ carrier of the goods and was not aware what was contained in the packages and therefore, penalty is not warranted. He said statements of co-accused cannot be relied upon.

3. Ld. Departmental Representative argued that the appellant asked Shri Sanjiv Rana the IE code of some reputed company to be used for export and was involved in packing and transport of goods. He has admitted in his statement about this. He said that freight was in the range of Rs.90,000/- and the value declared was in the range of Rs.20,000/- and Shri Nand Ram knew that goods were not auto parts as he was involved in their packing. He said the statement of co-accused are also corroborative.

4. I have considered the contentions of both sides. The appellant has confessed in his statement under Section 108 ibid that he contacted Shri Sanjiv Rana to get IE code of a reputed company to export the impugned goods. He was aware that the impugned goods were not auto parts as he had a role in their transport and packing. The impugned goods have been confirmed to be prohibited for exports under the Antiquities & Art Treasure Act, 1972. The statements of Shri Rajiv Gupta and Shri Mukesh Rana, even if arguably not admissible as evidence in the absence of cross-examination, clearly corroborate the appellants own statement which further adds to the credibility of his (i.e., the appellants) statemen). It is, thus, obvious that the appellant was fully aware of the illegal nature of the goods attempted to be exported and the mis-declaration thereof. In the light of the foregoing analysis, I am of the view that the appellant is guilty of abetment of the attempted to export which attracts penalty under Section 114 of the Customs Act, 1962. Having regard to the fact and the role played by the appellant in the attempted illegal export and the nature of the impugned goods, I find that the penalty imposed is neither excessive nor arbitrary or perverse. Therefore, I do not find any reasonable ground warranting appellate intervention in the impugned order. Accordingly, the appeal is dismissed.

(Pronounced in the Open Court on 10.07.2015)

(R.K. Singh)

Member (Technical)

SSK

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