Shri Shailender 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/607/2009-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 Shailender Singh 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.53819/2015, 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 has contended that he was falsely implicated in the matter and had nothing to do with the smuggling. Further, he was not given opportunity to cross-examine the witnesses and was not aware of any smuggling activity or mis-declaration and nothing incriminatory was recovered against him from any place.

5. We have perused the records. It is seen that the appellant was a G-cardholder of M/s P.D. Easwaran, CHA and used his G card for filing the concerned Bill of Entry in respect of which seizure was effected on 28.02.2007. In his statement dated 28.02.2007 the appellant admitted that Bill of Entry No.573667 dated 22.02.2007 was filed by him using the said G-card. He also admitted that he understood that by filing a Bill of Entry in the name of M/s. Quick Clearing Agency he was doing something suspicious and wrong. The appellant was not a novice and being a G cardholder of a CHA, fully understood the consequences of signings a Bill of Entry in this manner. As regards cross examination, it is seen that the appellant himself admitted to have signed the concerned Bill of Entry in the full knowledge of the fact that doing so by him was not proper and therefore no cross-examination is required with regard to this act of commission on the part of the appellant. In the case of Surjeet Singh Chhabra Vs. Union of India [1997 (89) ELT 346 (SC)] it was essentially held that where the petitioner had confessed not allowing cross-examination was not violative of the principles of natural Justice. Thus the act of commission on the part of the appellant with regard to the fraudulent clearances of the impugned goods which were liable to confiscation is evident rendering him liable to penalty under section 112 of the Customs Act, 1962. Having regard to the nature of the impugned goods and in view of the fact that their value was Rs.1.13 crores, we are of the view that penalty imposed on him 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. Therefore, the appeal is dismissed.

(Justice G. Raghuram)

President

(R.K. Singh)

Member (Technical)

SSK

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