Ms.Archana Wadhwa J,
New Customs House, Near IGI Airport, New Delhi-110037 And Customs Appeal No. 50068 of 2020 (Arising out of Order-in-Appeal No. D-II/ICD/TKD/IMP/648 & 649/2019 dated 27.09.2019 (30.09.2019) passed by the Commissioner of Customs (Appeals), New Customs House, New Delhi) Badi Uz Zaman Appellant D-37/749 Kasan-e-Adab 100 Feet Foad Chattarpur, (Adjoining to Delhi Jal Board Office), New Delhi VERSUS Commissioner of Customs, Respondent New Customs House, Near IGI Airport, New Delhi-110037 APPEARANCE:
Shri Aneesh Mittal, Advocate for the appellant Ms. Shreya Sharma, Advocate & Ms. Nikita Singh, Advocate Shri Y. Singh, Authorised Representative for the respondent CORAM:
HON'BLE MS. ARCHANA WADHWA, MEMBER (JUDICIAL) FINAL ORDER NOs. 50533-50534/2020 DATE OF HEARING: 14.02.2020 DATE OF DECISION: 05.03.2020 ARCHANA WADHWA:
Both the appeals are being disposed of by a common order as they arise out of the same impugned orders and out of same set of facts and circumstances. It is seen that Commissioner (Appeals), has dismissed the appeals as barred by limitation by observing that the same stands filed after a period of 94 days and he has no power to condon the delay. It was also noticed by Commissioner (Appeals) that the appellant had not deposited the requisite pre-deposit of 7.5%.

2. However, it is noticed that the order impugned before the Commissioner (Appeals) was passed on 22.03.2018, and received by the appellants on 24.03.2018. The appeals their against was filed by the appellants before Commissioner (Appeals) on 23.05.2018, but the same were returned by the registry as the same were not accompanied with the evidence of pre-deposit. The said fact is evident from registered entry No. 4964 placed on record by the appellant. Thereafter, the appeals were again filed on 27.06.2018 and were accepted by the office of Commissioner (Appeals) even though they were not accompanied with the pre-deposit particulars. In such a scenario, the initial date of filing of the appeal has to be taken as the relevant date. Inasmuch as the appeals were originally filed within the period of limitation, the same could not have been dismissed by Commissioner (Appeals) as barred by limitation. Further, the appellants have now deposited the 10% of the penalties imposed upon them, as a condition of filing of appeal before Tribunal, which covers 7.5% amount to be deposited before Commissioner (Appeals). As such, no objection is found in the said aspect also and the impugned order is not sustainable. Accordingly, I proceed to decide the appeals on merits.
3. The challenge in both the appeals is to imposition of penalty of Rs. 50,000/- imposed upon the appellants in terms of the provisions of Section 112 (a) of the Customs Act, 1962.
4. As per facts on record, a container was imported at ICD Tughlakabad and was lying there since 22.10.2016. No bill of entry was filed in respect of the same either by the consignee or any other person. An intelligence was developed by the DRI about the said container, which mentioned the goods as corrugated boxes (packaging material), and was shipped from Singapore. As per bill of lading and the IGM provided by the shipping company, the consignment was shipped from Singapore in the name of one M/s. Ankit Emterprises, Gandhi Nagar, Delhi.
5. The container was examined on 17.12.2016 and was found to contain only a few corrugate boxes and the remaining goods were found to be cigarettes of foreign origin of different brands without any declaration of MRP. As the import of the cigarettes without the mention of MRP was in violation of the provisions of the legal Metrology Act, 2009, the officers entertained a view that the same was with an intention to smuggle the cigarettes without payment of duty and by illegally entering into India. As a consequence the same was seized under a Panchanama dated 17.12.2016.

6. During the post seizure investigations, statements of various persons were recorded. As the bill of lading was provided by shipping company known as M/s. Korea Marine Transport Company (herein after referred to as KMTC), statement of their manager, documentation, Shri Ajay Kumar was recorded on 27.12.2016. He deposed that container was booked by Tania (ASIA), Logistics PTE, Singapore and consignees name was declared as Ankit Enterprises. As per email dated 27.12.2016 by M/s. Tania (ASIA), it was communicated to him that the present two appellants are the contact persons, as informed to them by their customer. Statement of Shri Devidas Dhingra, Proprietor of Ankit Enterprises was also recorded on 09.01.2017, deposing that they had not imported any items in the name of M/s. Ankit Enterprises and he had given their IEC documents to one Shri Gireesh Kumar for surrendering the same. In his subsequence statement he disclosed that the consignment was imported by M/s. Seaking Shipping and Logistics; that Shri Gireesh Kumar to whom he had given IEC documents for surrender informed him that two of his known persons (the present appellant) intended to import marbles stones but did not have IEC; that the IEC of their company would be provided to them at a Commission of Rs. 50,000/-, and accordingly, the IEC were given to the present appellant for import of the marbles; that a cheque of Rs. One Lakh was given in the name of M/s. Ankit Enterprises as a lump sum money; that he has never met the appellants in person. Subsequently, statement of Shri Gireesh Kumar was recorded on 04.02.2017 as also on 19.04.2017 indicating that he was known to Shri Habib-Uz-Zaman for the last 15 years, who was engaged in freight forwarding work that he and his brother wanted to import marble stones and asked him to arrange for IEC at a Commission; that such IEC in the name of M/s. Ankit Enterprises was transferred to them alongwith providing of PAN Card and other documents in the name of Ankit Enterprises. Further statement of one Shri Lalit Katoch, MD of all-Track Logistics was recorded deposing that he received a call from one Shri Pawan Kumar Singhal, regarding the clearance of consignment imported by M/s. Ankit Enterprises Statement of Shri Pawan Kumar Singhal was also recorded, wherein he admitted having received a call from one of his client friend Shri Dayanand Sharma requesting for clearance of the consignment imported in the name of M/s. Ankit Enterprises and he was aware that only corrugated boxes are there in the consignment. Further statement of one Shri Mohan Kumar Jha was also recorded disclosing that he works on Commission basis for clearance of the customs consignments and all the documents in the name of M/s. Ankit Enterprises were given to him for doing the needful. Similarly, Shri Dayanand Sharma in his statement deposed that the clearance of the consignment were given to him by Mohan kumar Jha and in December 2016, he was contacted by the appellants asking him to collect the said documents telling him that the consignment was there and they want to get it clear.

7. Based upon the statement of various persons, the appellant here in were also summoned for recording of their statement, who denied having any connection with the imported goods. Shri Badi-Uz-Zaman stated that he was mainly engaged in the work of real estate and has no other work; they do not know M/s. Ankit Enterprises or its proprietor Shri Devidas Dhingra. They have no knowledge about smuggling of cigarettes though one of his known persons Shri Mehul Jain of Mumbai, engaged in customs freight forwarding work, contacted him about 8 months back and informed that he had to import one container of corrugated boxes and needs some logistical support at Delhi. He gave the contact number of his younger brother and the details of his company M/s. Seaking Shipping and Logistics for helping him. As regards the cheque amount of Rs. One Lakh Shri Habib-Uz-Zaman disclosed that the same was given to Shri Gireesh Kumar as a loan.
8. Based upon the above, proceedings were initiated against the appellants, inter alia, for imposition of penalties upon them. The notice also proposed confiscation of the goods and imposition of penalties upon the other appellants. As the impugned order of Commissioner (Appeals) stands passed in relation to the present two appellants only, their appeals are being taken up for final disposal.
9. On going through the impugned orders as also the submissions made by both the sides it is seen that the adjudicating authority has concluded that the present two appellants were the mastermind of the import of the cigarettes and were the actual owners of the imported goods based upon the statements of various persons recorded during the investigation. It may be noted that the bill of entry was not filed by any person in India. The bill of lading revealed the consignee as M/s. Ankit Enterprises and there was no name of the appellants either in the bill of lading or in the invoices issued by the foreign exporters. It is only during the recoding of the statements, the co-noticee impleaded the present appellants. When the appellants were contacted, they denied any role in the import of goods in question. It is well settled law that the statements of the co-noticee cannot be adopted as a legal evidence to penalize the accused unless the same are corroborated in material particulars by independent evidence.
10. Even the statements of various persons are not conclusive to establish the appellants as the importer of the goods as the same are in the nature of hear-say evidence. No deponent has clearly mentioned that they were fully aware of the fact of the appellants being the owner of the goods and have merely mentioned that they were told so by the other concerned persons. There is virtually no evidence in the present case so as to show that the appellant were the actual importer of the goods. Revenue has not made any enquiries with the supplier of the goods so as to establish as to who ordered the import of the goods. No enquiries stand made by Tania (Asia) Singapore, so as to establish as to who paid the freight and on whose constructions the consignment was booked. As per the appellant they had never visited Singapore at any point of time and there is no record of even any telephonic conversation between the appellant and the supplier or the shipping agency etc. There is no evidence of remittance of money by the appellant to the foreign supplier. Even when Shri Ajay Kumar, Manager KMTC contacted the appellants for delivery of the goods, they denied having any connection with the consignment imported in the name of Ankit Enterprises. As rightly argued by the learned Advocate, that if the present appellants were the owners of the imported consignment, there is no reason for them to deny any knowledge about the import of consignment. Further, as disclosed by the appellant that it might be Shri Mehul Jain of Mumbai, who had imported the consignment, Revenue has not bothered to make any investigations at his end. The reliance on the cheque amount of Rs. One Lakh paid from account of national construction company to Ankit Enterprises also cannot be adopted as an evidence to show that the imported goods were belonging to the appellant in as much as it stands clarified by the appellants that the said cheque was given as a loan to Gireesh Kumar. Even otherwise also, the said fact does not establish any link between the appellants and the imported goods in the absence of any documentary evidence. It may be observed that the onus to prove so lies heavily on the Revenue and the allegations cannot be made on the basis of assumptions and presumptions. Revenue has failed to investigate the matter thoroughly and has merely proceeded on the basis of doubtful statements, which have also not be tested on the touch stone of cross examination and as such are not admissible as evidence. The adjudicating authorities reasoning that the appellants have not given any reason as to why deponents have named them cannot be appreciated as negative onus cannot be cast upon the appellants to disprove the statements of the co-noticee.
11. As already observed, the entire case of the revenue is based upon the statements of the other persons, who have not been even offered for cross examination. The appellants statements are ex-culpatory and there is no evidence produced by the revenue to show that the same are false statements. In the absence of any evidence to the contrary, to impose penalty under Section 112 (a) of the Customs Act, which provides for imposition of penalty in case of the asseessee importer being related to the smuggled goods, is not justified and warranted.
12. Accordingly, I find no reasons to uphold the imposition of penalty upon them. The same is set aside and both the appeals are allowed with consequential relief to the appellants.