Case Law Details
Planet Green Retail Vs Principal Commissioner of Customs (Preventive) (CESTAT Delhi)
CESTAT Delhi held that absolute confiscation of the gold and imposition of penalty thereon justifiable on account of illicit smuggling of gold without any valid documents.
Facts- Based on the investigation, it was alleged that the six gold bars of foreign origin have been illicitly smuggled without any valid documents. Hence the Customs officers seized all six bars of 1 kg. each vide the panchnama dated 06.04.2015. The show cause notice bearing No. 86/5 dated 03.07.2015 under section 124 of Customs Act, 1962 was served upon the appellant proposing the confiscation of 6 kg. of gold valued at Rs. 1,45,99,200/-, the seizure of machines and of the packing material, which was used for concealing the aforesaid gold and the imposition of penalty upon the appellant. Three opportunities of personal hearing were being given to the appellant who failed to appear. Resultantly the impugned order was passed ex-parte confirming the said proposal.
Conclusion- Held that the department has made sufficient compliance of Section 123 of Customs Act, 1962. In the impugned order, the Adjudicating Authority has meticulously summarized the grounds for order absolute confiscation of the gold and the packing machines seized and to order penalty on the appellant. We do not have any reason to differ from those findings. Resultantly we hereby upheld the said order. Consequent thereto, the appeal stands dismissed.
FULL TEXT OF THE CESTAT DELHI ORDER
Present is an appeal assailing the order-in-original bearing No. 16/2016 dated 06.10.2016. The facts, in brief, relevant in the impugned adjudication are as follows :
“The Officers of Customs (Preventive) got a specific information about two Strong Glue Smearing Machines Model “CS 901” to have been lying in the godown of CELEBI, the custodian of import goods, which has been sold as unclaimed and un-cleared in e-auction held by CELEBI on 17 and 18 March 2015, that the machines had gold concealed therein. Pursuant to said information, the said officers, on 25.03.2015, detained both the said machines in CELEBI godown itself vide panchnama of the even date. The machines got unpacked after removal of upper metallic layer and were examined on 06.04.2015 in the presence of the independent witnesses. Some object wrapped in a black adhesive paper was found. It was reveled to be a yellow metal with the inscriptions “EMIRATES Gold, gold 1 kg., 999.9, EGO, Sl. No. 280748. From the other machine similarly wrapped three bars of yellow metal with similar inscriptions were recovered except, different Sr. No. i.e. 260767, 280762 and 270760 were found.”
2. Six of metal bars got examined from the jewellery appraisal Mr. Ashok Jherwal who vide his report dated 06.04.2015 confirmed all the bars to be the foreign marked gold bars of 1 kg. each with 999.9 purity collectively valued at Rs. 1,45,99,200/-. The matter was subsequently investigated. Statements of all concerned from CELEBI and even from Air India and from M/s Planet Green Retail, Chattarpur, the consignee in both the airway bills for import were recorded. It was alleged that the six gold bars of foreign origin have been illicitly smuggled without any valid documents. Hence the Customs officers seized all six bars of 1 kg. each vide the panchnama dated 06.04.2015. The show cause notice bearing No. 86/5 dated 03.07.2015 under section 124 of Customs Act, 1962 was served upon the appellant proposing the confiscation of 6 kg. of gold valued at Rs. 1,45,99,200/-, the seizure of machines and of the packing material, which was used for concealing the aforesaid gold and the imposition of penalty upon the appellant. Three opportunities of personal hearing were being given to the appellant who failed to appear. Resultantly the impugned order was passed ex-parte confirming the said proposal.
3. Appellant vide letter dated 03.04.2018 conveyed to the Department about not receiving the copy of order-in-original and requested for the copy of the impugned order-in-original. The copy was made available to the appellant vide letter dated 03.04.2018. Being aggrieved of the said order, the appeal has been filed thereafter.
4. We have heard Ms. Saksham Garg, learned counsel for the appellant and Shri Rajesh Singh, learned authorized representative for the Department.
5. Learned counsel for the appellant has mentioned he had wrongly been roped into the present investigation, he has no connection with the impugned consignment. No document related to the impugned consignment is available with him. The appellant never received any communication as that of show cause notice or notices of personal hearing nor even the order-in-original. It is only after he received the notice of recovery that he applied for the copy of order under challenge and filed the present appeal thereafter. The ex-parte order is prayed to be set aside on this ground itself.
6. Per contra, learned departmental representative has mentioned that appellant had full knowledge of his IEC obtained from DGFT having the said address as was mentioned in IGM and Air Way Bill (AWB). He had never contested that IEC to have been obtained by others on forged KYC of the appellant. As per DGFT record, the IEC has been taken on the registered address mention the address from IEC in the year 2013, whereas the appellant in his statement dated 30.08.2018 has stated that he had left the premises in the year 2005. Based upon the said IEC department passed the opinion it is appellant only who is involved into the import of 6 kg. of gold that too getting it concealed into machines. Apparently none ever appeared in Customs House to claim the import of impugned AWB arrived at IGI import cargo. Consignee for both the consignments is apparently the appellant. It is impressed upon that the Adjudicating Authority has meticulously examined the evidence on record before holding the appellant guilty, penalizing him and before ordering the confiscation of seized machines and the gold which was found concealed in the said machines. Thus there is no infirmity. Learned Departmental Representative relied upon Carpenter classic Exim Pvt. Ltd. versus Commissioner of Customs, Bangalore1.
7. Having heard the rival contentions, we observe and hold as follows :-
The present case is regarding smuggling of 6 kg. gold of purity 999.99 Carat concealed in a machine which was arrived vide Import General Manifest (IGM) No. 562341 dated 28.02.2015 AWB No. 098-76924635 & 098-76824661 from Hong Kong vide flight No. AI317 dated 28.02.2014. The consignee name on the IGM and AWB is M/s Planet Green Retail with address as Shop No. 6, Sharma Complex, Chattarpur, New Delhi – 110 074. This address admittedly belongs to appellant.
The investigation was conducted by Customs Dept. and it was found that the said address i.e. Shop No. 6, Sharma Complex, Chatterpur, New Delhi – 110 074 is the registered address in the IEC of the Appellant, M/s Planet Green Retail and the address of Shri Sumeet Jain – Prop. of the Appellant firm was found as 1480, Sector 21, Gurgaon, Haryana. However, both the said addresses were left by the Appellant in 2014 and 2015. It has came on record that the present address of the appellant is House No. 95, Aaron Ville, Sector – 45, Sohna Road Gurgaon ;
8. Adjudicating Authority observed that as the shipments were not got cleared by the consignee a notice in terms of Section 48 of the Customs Act, 1962 for clearance of un-clear import consignment was issued by CELEBI on 27.03.2014 to consignee through courier M/s First Flight. No Bill of Entry for import of goods under AWB Nos. 098-76824661 and 098-7682635 was filed by the consignee; after receiving no response from consignee, the said two machines were placed for auction under lot No. 48775 and 49069 and e-auctioned on 17 & 18.03.2015 through bid. But Both the machines were detained from CELEBI warehouse on 25.03.2015 during examination whereof revealed the impugned 6 kg. gold allegedly the smuggled gold. At the premises (shop No. 6, Lower Ground Floor, Sharma Complex, Chattarpur, New Delhi – 110 074) of consignee as shown in AWB5 no firm was found in existence in the name & Style of M/s Planet Green Retail. Smt. Indu Sharma was found to be the owner of said property. The son of the owner told that the premises No. 1480, Sector 21, Gurgaon, Haryana belonged to Shri R.K. Grover, resident of C-427, 1st Floor, C.R. Park, New Delhi and the said owner did not rent out the premises of Sh. Sumeet Jain the Prop. of appellant at any time.
9. The above facts it stands clear that the circumstances under which the said six gold bars each weighing 1 kg. were recovered from two machines imported in the name of fictitious and non-existing firm i.e. M/s Planet Green Retail and that none came to claim the said consignment despite that the CELEBI issued a notice for hearing are suo-moto sufficient to accept that the gold has been smuggled getting concealed in two machines imported from Hong Kong.
10. It is apparent from the statement of Manager CELEBI dated 04.2015 that he looked after the disposal of un-claimed and un-cleared consignment of cargo; that their system automatically generated the report of un-claimed and un-cleared cargo after 30 days and they immediately on receipt of list of un-claimed and un-cleared cargo sent a notice to the consignee, airline, consolidator and customs disposal section; that if no reply was received within the stipulated period of the notice, an advertisement is given in the daily newspaper under Section 48 of the Customs Act, 1962 and if no claimant came forward to claim the goods, the goods were then got valued from the government approved valuer. After valuation, the list of goods less than one year old was sent to Customs for approval. Port clearance from Customs, goods were put for disposal through e-auction.
11. In the present case the goods detained by the Customs (Preventive) arrived at the Air Cargo (Import) on 28.02.2014 by Air India Flight No. AI-317 from Hong Kong and notice for clearance of un-cleared Import consignment was issued on 03.20 14 to M/s Planet Green Retail, Lower Ground Floor, Shop No. 6, Sharma Complex, Chattarpur, New Delhi – 110 074 through courier M/s First Flight vide receipt no. 0991B0037570 and 0991B0037571 both dated 28.03.2014 respectively. He also stated that the machines mentioned in Panchnama dated 06.04.2015 were same as mentioned in the list of e-auction and which were taken into custody from the disposal godown of CELEBI Air India Operation Manager provided a photocopy of the manifest dated 28.02.2015 showing that the consignor in both the AWB booked from Hong Kong to New Delhi was M/s Power House International, Ground Floor, Yuet Kwong Buildings, 34, Fui Kok Str., Isuen Wan, Hong Kong and consignee in both the AWBs was M/s Planet Green Retail, Lower Ground Floor, Shop No. 6, Sharma Complex, Chattarpur, New Delhi – 110 074 and that the value of the consignment was declared as “NVD means No value declared.
12. We observe that the appellant did not respond to the said CELEBI notice it did not respond to the show cause notice issued under Section 124 the appellant also fail to respond three notices of personal hearing where after the impugned order was passed ex-parte.
13. We also observe that the recovery notice which is mentioned to be a source of knowledge to the appellant about the impugned proceedings has also been issued on the same address on which were issued the earlier notices including the show cause notice. We observe that during investigation it was revealed that the address mentioned on both AWB is of the premises belonged to one Mrs. Indu Sharma Statement of Shri Saurabh Sharma son of Mrs. Indu Sharma was recorded under section 108 of the Customs Act, 1962 on 09.06.2015 in which he, interalia, stated that said shop was rented out to Shri Sumeet Jain S/o Shri S.C. Jain, resident of 1480 Sector 21, Gurgaon from October 2013 to May 2014 which belonged to Shri R.K. Grover, resident of C-427, 1st Floor, C.R. Park, New Delhi who vide his statement dated 10.06.2015 stated that he was owner of premises 1480, Sector 21, Gurgaon. Shri Subhash Jain was his tenant at his property 1480, Sector 21, Gurgaon from 2003- 2006.
14. These facts when seen with IEC it becomes clear that the registered person of that IEC i.e. Shri Sumeet Jain the Proprietor of present appellant is the only person connected to the impugned AWB. He has not produced any evidence to show that the IEC has been forged in his name without his knowledge. He has not produced any document.
15. Learned Departmental Representative has also placed on record the communication received from Assistant Commissioner of Customs review dated 17.12.2019 showing that the department has made sufficient compliance of Section 123 of Customs Act, 1962. We also observe in paragraph 25 of the order under challenge that the Adjudicating Authority has meticulously summarized the grounds for order absolute confiscation of the gold and the packing machines seized and to order penalty on the appellant. We do not have any reason to differ from those findings. Resultantly we hereby upheld the said order. Consequent thereto, the appeal stands dismissed.
(Order pronounced in open court on 04/10/2023.)
Notes:
1. 2006 (200) E.L.T. 593 (Tri. – Bang.)
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