Shri Narender S. Chahar 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/605/2009-CU[DB]

[Arising out of Order-in-Original No.17/Commr/HKT/2009, dated 12.08.2009 passed by the C.C.(Preventive), New Delhi]

Shri Narender S. Chahar Appellant

Vs.

C.C. (Preventive), New Delhi Respondent

Appearance

None - for the appellant

Mr. Ranjan Khanna, DR - for the respondent

CORAM: Honble Justice G. Raghuram, President

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

Final Order No.53821/2015, dated 23.09.2015

Per Mr. R.K. Singh :

Appeal has been filed against order-in-original dated 12.12.2009, which upheld order-in-original dated 20.08.2009, in terms of which penalty of Rs. 1 lakh was imposed on the appellant.

2. The brief facts of the case are that on 27.02.2007 specific intelligence was allegedly gathered by Customs to the effect that (i) intact garments in the name of old completely pre-mutilated garments would be fraudulently cleared from ICD, Tughlakabad (TKD), even without examination by Customs Authority. (ii) The location of the impugned container was told to be near petrol pump, opposite canteen in the Import Shed examination area of ICD, TKD. (iii) These goods were informed to be loaded on specific trucks after de-stuffing from the said container. (iv) Further, these goods will be cleared under the gate pass of some other garments. As such, a team of Preventive Officers rushed to ICD, TKD, and traced out the said container near petrol pump, opposite canteen located in the import shed of ICD, TKD. The aforesaid trucks were also found parked nearby the subject container out of which one truck was already fully loaded with the bales and the second truck was in the process of being loaded. Surveillance was kept. After loading of the second truck both the trucks moved towards the exit gate and were intercepted by Customs officers. On being asked, the drivers of both the trucks, confirmed that they had got the said goods loaded from the impugned container. Further, they informed that they were not having any document related to the impugned goods and that they would get the gate pass at the exit gate of ICD, TKD.

3. No one appeared for hearing when the case was called nor was there any request for adjournment and therefore, we proceed to decide the case on merits.

4. The appellant in his appeal has essentially contended that he was simply a G-cardholder of M/s. Quick Clear Agency, holder of CHA licence and was compelled to give statement under Section 108 of the Customs Act, 1962 which he retracted. He had nothing to do with the smuggling of the impugned goods.

5. On perusal of records, it is seen that the appellant was a G-cardholder of M/s. Quick Clear Agency (a CHA) and partner of M/s. P.H. Logistics and directly and actively participated in smuggling in this case as is evident from para 46.3 of the impugned order, the contents of which are not being repeated here for brevity. The said para clearly brings out that the Bill of Entry was filed with G card of the appellant, the papers relating to the goods were handed over to the appellant to get them cleared from Customs, he was aware that goods were not mutilated rags, and he got good amount for getting the consignment cleared. He arranged the trucks, and was guiding/instructing the drivers of the trucks. The appellant in his statement narrated the modus operandi followed to hoodwink customs and confessed that even earlier he got complete garments cleared in the guise of premutilated rags and that he was aware that duty on premutilated rags was lower than duty on garments. Therefore, he is clearly liable to penalty under Section 112 of the Customs Act, 1962. In the case of K.I. Pavunni Vs. Astt. Collector [1997 (90) ELT 241 (SC)], Supreme Court has in effect held that a bald retraction without any evidence of threat or coercion does not take away the evidentiary value of a statement recorded under Section 108 Customs Act, 1962. Having regard to the nature of impugned goods and in view of the fact that their value was Rs.1.13 crores, we are of the view that the penalty imposed by the adjudicating authority is not unreasonable or arbitrary. Therefore, we find no such infirmity in the impugned order with regard to the penalty imposed on the appellant as to invite appellate intervention. The appeal is dismissed.

(Justice G. Raghuram)

President

(R.K. Singh)

Member (Technical)

SSK

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