Illegal Non-Basmati Rice Export: CESTAT reduces Penalty to Rs. 4 Lakhs

Rakesh Dhamir Vs Commissioner of Customs (CESTAT Delhi)

Learned Commissioner (Appeals) recording the finding that the appellant had evidently involved himself in the illegal export of non-basmati rice and have also admitted his role in so many words in his various statement recorded, and also have explained the details of modes operandi. Accordingly, the appeal was dismissed upholding the imposition of penalty. Being aggrieved, the appellant is before this Tribunal.

CESTAT observed that it is evident that this appellant have knowingly connived for money with Sh. Sinder Pal and Sh. Abhishek Gupta and others, in the export of prohibited goods, non-basmati rice, by resorting to mis-declaration and fraud. Further, admittedly in the course of various statements recorded on different dates from this appellant he has admitted the modus operandi and have stated in detail the modus operandi as well as the amount of remuneration he was getting from Sh. Sinder Pal, which leads to the conclusion that he had connived with Sh. Sinder Pal and Sh. Abhishek Gupta in the export of prohibited goods for money.

Accordingly, CESTAT confirm the penalty imposed upon Appellant but in the facts and circumstances reduce the penalty from Rs. 8 lakhs to Rs. 4 lakhs.

FULL TEXT OF THE CESTAT DELHI ORDER

The issue in this appeal is whether penalty of Rs. 8 lakhs have been rightly imposed upon the appellant who is a freight forwarder under Section 114 of the Customs Act.

2. The appellant is a freight forwarder and facilitated the importer and exporters. The Revenue on receiving intelligence inspected Container No. HDMU2647744 pertaining to Shipping Bill No. 2402263 dated 02.02.2011, declared as sanitary ware. On inspection it was found as contain rice. The said shipping bill was filed by Sh. Rakesh Kumar on behalf of exporter – M/s V. G. Plastics Pvt. Ltd., through the CHA – M/s Neptune Cargo Movers Pvt. Ltd., As the goods were found mis-declared they were seized, the rice was found packed in gunny bags of 25 kg. each, revealed on one side ‘house brand premium quality rice white ponny’ and on the other side PAR boiled white ponni M/s KNP Trading Pte. Ltd., (Surya Trading ENTs Pte. Ltd.,).

3. On further information that non-basmati rice was being fraudulently exported by using the IEC of M/s HSIL Limited (formerly Hindustan Sanitary Ware and Industries Limited) and by M/s GPR Export Pvt. Ltd., under the following shipping bills:-

4. Thus, the containers which have been given ‘let report order’ from ICD, Tughlakabad were called back from Port – Nhava Sheva and on examination where found to contain non-basmati rice instead of declared goods – sanitaryware and gas regulators. Accordingly, these were also seized.

5. Representative samples were drawn from the said containers and got tested from the Directorate of Marketing & Inspection, Regional Agmark Laboratory. The sample did not conform to the standards prescribed in basmati rice (export) Grading and Marketing Rule, 1979 and did not conform to requirement of length and length/ breath ratio as per the DGFT Notification No. 55(RE-2008)/2004-2009 dated 05.11.2008. As per DGFT Notification No. 39(RE-2007)/2004-2009 dated 15.10.2007 export of non basmati rice falling under tariff item 1006 is prohibited.

6. The goods contained in two containers bearing No. CAXU3149603 and No.CRXU3197102 covered under two Shipping Bills No. 2413596 and No. 2413591 both dated 03.02.2011 respectively were filed by Sh. Rakesh Kumar on behalf of Sh. Abhishek Gupta owner of M/s C. L. International by using fraudulently the IEC of M/s HSIL and by declaring goods as ‘Sanitary Ware’. Further, two other containers No. HCIU2107936 and No. HDMU2629870 were found stuffed with Non-Basmati Rice and filed Shipping Bills No. 2402258 and No. 2402261 both dated 02.02.2011 respectively on behalf of Sh. Sinder Pal owner of M/s GPR Exports Pvt. Ltd., by using the IEC of HSIL but declared as sanitary ware and gas regulator on the said shipping bills.

7. Statement of Sh. Rakesh Dhamir was recorded under Section 108 wherein he inter alia admitted that he knew the contents of the containers to be non-basmati rice and not gas regulator or sanitary ware as declared. He further stated that he associated with Sh. Sinder Pal who used to pay him Rs. 1.25 lakhs per container as clearance charges for export; Sh. Dhamir also used to file the shipping bills on behalf of Sh. Abhishek Gupta, owner of M/s C. L. International by using the IEC of HSIL. He further stated that he was Proprietor of M/s Toshnek International & Forwarders having his office at East of Kailash, New Delhi and is engaged in the business of freight forwarding since 2003. Further, stated that he knew Sh. Rakesh Kumar for last 3-4 years who was working with him and left the job two years back and started his own custom clearance work. He also stated that the misdeclared goods in container No. HDMU2647744 belong to one Sh. Sinder Pal of Sangroor, Punjab and he was in constant touch with him and arranged for transportation of containers through M/s Guru Nanak Transport to the godown of Sh. Sinder Pal situated at Alipur, Delhi. Thereafter, Sh. Sinder Pal in his supervision loaded rice in the empty containers sent by him and thereafter the containers were sealed by using fictitious seal of Central Excise, so as to ensure that the containers are not examined again by the Customs. Further, stated that he used to prepare fictitious export documents by using forged rubber stamp of Central Excise and also forged the signature of the official(s). He has done this forgery in full awareness and understanding that the same is in violation of law. This forgery was made deliberately to make some easy money. He was aware that normally the containers which are factory stuffed and sealed by the Central Excise Officers, are not subjected to customs examination at the port. Further, stated that the fictitious rubber stamp of Central Excise were got made by Sh. Sinder Pal who also provided the other details like the name of the Central Excise Officer and name of Range, Division, etc. Further stated that on receiving the information of detention of the containers from Sh. Rakesh Kumar, he got suspicious and destroyed the fake Central Excise rubber stamp by throwing them in the drain. Also stated that documents pertaining to shipments cleared earlier were lying in his office at New Delhi. Further, stated that he was involved in freight forwarding of seven containers seized by the Customs. Also stated that he has been fraudulently using the IEC code of M/s V. G. Plastics Pvt. Ltd., and M/s HSIL for the purpose of fraudulent export of rice by mis-declaring the same as sanitaryware etc., under similar modus operandi. He also exported rice in the name of M/s GPR Exports Pvt. Ltd., Also stated that he has already exported 17-18 consignments under the same modus operandi for Sh. Sinder Pal during the last 25 days i.e. January, 2011 onwards. Further, stated that Sh. Sinder Pal used to pay him Rs. 35,000/- per container and the overall payments he use to get from Sh. Sinder Pal of Rs. 1.25 lakhs per container which included freight and transportation. It was also stated that Sh. Sinder Pal was also fully aware of fraudulent for clearance of goods by him of non-basmati rice by mis-declaration. Further stated that he was not aware as to how Sh. Sinder Pal was getting the foreign remittance for the export. Further stated that he was in constant touch with Sh. Sinder Pal through mobile phone and e-mail. Further stated that under the same modus operandi he also exported rice for one Sh. Abhishek Gupta of Paschim Vihar, New Delhi, and gave his mobile number. So far he exported around six containers for Sh. Abhishek Gupta who was also paying him Rs. 1.25 lakhs per container in cash. He further stated that as per direction by Sh. Sinder Pal he had booked two containers from ICD, Tughlakabad for delivery to Alipur godown of Sh. Sinder Pal for stuffing. After receipt of the goods from Sh. Sinder Pal at ICD, Tughlakabad he had directed Sh. Rakesh Kumar to file the shipping bills in the name of M/s HSIL and other in the name of M/s V. G. Plastics Pvt. Limited. Both the shipping bills were filed on 02.02.2011 by declaring the goods as sanitary ware, whereas actually the goods were non-basmati rice. Also stated that till date (05.02.2011) he has filed 23-24 shipping bills for clearance of non-basmati rice which are prohibited goods, in the guise of sanitary ware and or gas regulator. Further about 18 -19 containers have already been sent out of India and about 5 – 6 containers may be lying in gateway Port. He further stated that the code of IEC of HSIL and M/s V. G. Plastics Pvt. Limited was received by him through Sh. Sinder Pal, Director of M/s GPR Export Pvt. Limited. Further stated that he himself paid all the charges like transport freight, terminal handling charges, ocean freight and other charges from his own account in respect of goods booked in the name of M/s HSIL/ M/s V. G. Plastics Pvt. Limited/ M/s GPR Export. He further stated that he has received nearly Rs. 5 lakhs through bank transfer from Sh. Sinder Pal and the rest amount in cash. Further stated that he has gained Rs.30,000/- per container after meeting the out of pocket expanses. It was further stated that he has hired the services of Sh. Rajinder P. Kapoor, CHA to clear 5- 6 shipping bills in the name of M/s HSIL, for which he paid Rs. 1,100/- per container. Further stated that he had not informed Sh. Rajinder P. Kapoor about the mis-declaration in the goods being exported. It is further stated that he has hired the services of Sh. Rakesh Kumar and was paying Rs. 15,000/- per shipping bills for export clearance. As per his knowledge Sh. Rakesh Kumar had arranged export clearance through CHA – M/s Neptune Cargo Movers Pvt. Limited.

8. Statement of Sh. Rakesh Kumar was also recorded on 05.02.2011 wherein he, inter alia stated that he had joined M/s Toshnek International in the year, 2008 and they were engaged in custom clearance and forwarding work. Further stated that he was assisting M/s Toshnek International for completing the custom clearance work for the last two months. The documents for which were given to him by Sh. Rakesh Dhamir and on the basis of such documents he filed the shipping bill either through M/s Neptune Cargo Movers and Ms. R. P. Kapur, both CHA. Further he was also signing the annexure(s) to the shipping bill and also stated that the stuffing of non-basmati rice by misdeclaring was in the knowledge of Sh. Rakesh Dhamir. Further, stated that since the export of non-basmati rice was prohibited under import export policy, the IEC numbers of M/s V. G. Plastics Pvt. Limited and M/s HSIL were being used to export the rice without taking the consent of these companies. Further stated that the consignments under the shipping bill of M/s HSIL was cleared on 04.02.2011. The consignment of M/s V. G. Plastics Pvt. Limited could not be cleared because of alert by SIIB. Further urged that the charges payable to CONCOR were paid by Sh. Rakesh Dhamir through pay order, made out of bank account maintained with Karur Vyas Bank and Kotak Mahindra Bank, which was operated by Sh. Rakesh Dhamir. Further stated that the transportation was done by M/s Gurunanak Transport Co. and no authorisation was given to both the CHA, as the export of non-basmati rice was being handled by Sh. Rakesh Dhamir without the knowledge of two CHAs. He further stated that the fake rubber stamp of Inspector and Superintendent of the Customs were sent by Sh. Sinder Pal to Sh. Rakesh Dhamir.

9. In follow up action search was also conducted on 22.02.2011 in the premises of Sh. Sinder Pal, where nothing incriminating was found. On further information received by Revenue that Sh. Sinder Pal have removed the relevant documents and were stored in premises of Sh. Ashish, and therefore follow up search at residential premises of Sh. Ashish on 22.02.2011, wherein some documents including rubber stamp were recovered from briefcase, which were resumed. Sh. Ashish in his statement stated that the brief case was handed over by Ms. Suman Preet w/o Sh. Sinder Pal, and he had no knowledge as to what was contained in the brief case. In response to summons Sh. Sinder Pal failed to appear, however, he approached the Hon’ble Supreme Court for grant of anticipatory bail, whereby the Hon’ble Supreme Court in its order dated 09.05.2011 directed that – Sh. Sinder Pal would appear before the concerned officer on 16.05.2011 and co-operate with the investigation but – not be arrested. Thereafter, Sh. Sinder Pal had appeared before the Superintendent on 16.05.2011 wherein his statement was recorded and he inter alia stated that he and his mother are Directors in M/s GPR Export Pvt. Limited, which is engaged in export of general items like gas regulator and sanitary ware to Singapore and Dubai; further stated that he has exported 5 -7 containers but could not recall the name of the company to whom the goods were exported through Sh. Rakesh Dhamir, and used to pay him Rs. 6,000/- per container plus all expenditure upto destination. Further stated that he has
purchased all items in cash and did not obtain bills for purchasing, nor remember the name of the supply company. He only looks after the work pertaining to his company and have nothing to do with purchase or export of goods. Further, stated that he has godown in Alipur and came to know few days back that his godown has been seized by the Customs; further stated that non- basmati rice stored in his godown have been purchased in cash without any bill. This was purchased for wholesale business as there was a rumour that exports of non-basmati rice is going to be allowed. Further, he stated that he does not know the CHA nor he has authorised Sh. Rakesh Dhamir or CHA for exporting his goods. Further, stated that he has no knowledge of export of goods in Container No. HDMU2629870. Nor he gave any documents to Sh. Rakesh Dhamir for exporting the goods.

10. Statement of Sh. Sinder Pal was again recorded on 20.06.2011 wherein he inter alia stated that he exports basmati rice from his firm namely M/s Kohinoor Kichen Trading Co.; they also do local trading of non-basmati rice. Further, stated that he does not manufacture gas regulator and sanitary ware, and same were purchased from the local market and exported without any bills. Further, in physical verification at the godown of Sh. Sinder Pal, 53 M.T. of non-basmati rice was found stored besides two weighing scales, one motorised zharana, three farrate fans and empty bags. The stored rice were found to be of same quality which has been seized by the Customs at ICD, Tughlakabad, which was booked for export in the guise of gas regulators and sanitary wares. He further stated that they are registered with the Sales Tax Department and showing the sales in tax return. Further, stated that he knew Sh. Rakesh Dhamir and Sh. Rakesh Kumar, who used to prepare all the documents for export. He used to give only name of the party to Sh. Rakesh Dhamir, but he never authorised Sh. Rakesh Dhamir. Further, he provided photocopy of IEC code; that he has no knowledge without authorisation letter or ID proof, export could not be done. Sh. Rakesh Dhamir used to say that he does not need documents for export and he never asked for that. He further stated that he has never exported non-basmati rice from M/s GPR Export and have exported only gas regulators and sanitary ware from his firm. Further, stated that Sh. Rakesh Dhamir had stored non-basmati rice in his godown which were lifted on 02.02.2011 by him, in the vehicles about which he does not have any knowledge. In his further statement recorded on 30.06.2011, he stated that non-basmati rice was loaded from his godwon by Sh. Rakesh Dhamir as he had given keys of godown to him. The similarity in the rice lying in the godown as well as the one seized by the Customs meant for export, may be due to the reason that both have purchased the rice from the same market. He further stated that he has never taken rent from Sh. Rakesh Dhamir, though Sh. Rakesh Dhamir agreed to give him Rs. 1,000/- per truck. He further stated that Sh. Rakesh Dhamir has lifted all his rice and 53 M.T. of non-basmati rice belongs to him. On being confronted with the statement of Sh. Rakesh Dhamir that the non-basmati rice belonged to Sh. Sinder Pal, which was being exported in the name of M/s V. G. Exports. Further, stated that his wife Ms. Suman Preet has not given any briefcase for storage to Sh. Ashish and thus he disputed the statement of Sh. Aamish. Further, stated that the briefcase recovered from the premises of Sh. Ashish does not belong to him.

11. Ashish Bansal was summoned and appeared before the Officers on 13.07.2011 and inter alia admitted his relationship with Sh. Sinder Pal and further reiterated that the brief case recovered from his residence was handed over by Ms. Suman Preet wife of Sh. Sinder Pal on the night of 22.02.2011, stating that the brief case containing costly items and may be kept safely; he has having cordial relationship with Sh. Sinder Pal accordingly he has kept the brief case for safety purpose. That from the brief case stamps of Central Excise Officers, election commission identity cards of Sh. Sinder Pal and Ms. Suman Preet, PAN number of M/s GPR Exports Pvt. Limited and PAN number of Kohinoor Overseas, PAN number of M/s Shree Balaji International, PAN number of Ms. Suman Preet, PAN number of Sh. Sukhjinder Singh two photographs of Sh. Sinder Pal, one photograph of Sh. Sukhjinder Singh and passbook of Sh. Sinder Pal pertaining to State bank of Patiala, thus, this appeared to Revenue that brief case was handed over by Ms. Suman Preet to Sh. Ashish Bansal.

12. Sinder Pal denied the ownership of non-basmati rice seized by the Customs at Port meant for export, Sh. Rakesh Dhamir was again summoned, who appeared on 21.07.2011 and inter alia stated that it is a fact that non-basmati rice was loaded from godown of Sh. S. Pal, but to say that it belonged to him was wrong. He was simply a shipping forwarder and had nothing to do with the purchase or export of rice. It was Sh. Sinder Pal who had made all exports in the guise of gas regulators/ sanitary ware and in the bill of lading he used to give the name of his firm, though in shipping bills he used to give fake name of the firm of Singapore. Further, stated that his firm M/s Kohinoor Kitchen is registered for dealing in non-basmati rice and basmati rice, wheat flour, Indian spices and rice flour. He further stated that the bill of lading of gas regulators and sanitary ware are in the name of M/s Kohinoor Kitchen, which does not deal in these items; further stated that he has handled all exports made by M/s GPR Exports Pvt. Limited, and all such export of non-basmati rice was exported, which was loaded from the godown of Sh. Sinder Pal in the guise of gas regulators etc.; he further stated that the documents for exports were mainly prepared by Sh. Sinder Pal who was also using the fake Central Excise seal/ stamp; that he was getting Rs. 1.25 lakhs for all expenses including ocean freight and has not borrowed any money from Sh. Sinder Pal. He further stated that he has never taken his godown on rent as he has never dealt in non-basmati rice and further have never visited the godown of Sh. Sinder Pal. Further, stated that he knew the contents of the container being non-basmati rice and not gas regulators and sanitary ware, but he associated and connived with Sh. Sinder Pal due to greed. He was saving about Rs. 25,000/- per container. Further, stated that M/s C. L. International belonged to Sh. Abhishek Gupta who also exported non-basmati rice; as per his knowledge Sh. Abhishek Gupta is exporting rice for the last three years through him and further stated that he does not know the type and quality of the rice being exported by Sh. Abhishek Gupta. Earlier also in the year 2009, two containers being exported by Sh. Abhishek Gupta were inspected and samples were drawn, which failed as per test report, the rice was found to be non-basmati rice and thus the rice was not exported.

13. Statement of Sh. Rajinder P. Kapoor, CHA was recorded on 01.04.2011 who inter alia stated that he has filed 15 shipping bills in the name of M/s HSIL Ltd., through his firm, the shipping bills were filed online by Sh. Ajuhurul Islam, ‘G’ Card holder of his firm. Further, stated that he did not have any direct contact with M/s HSIL; one Sh. Anant Kumar, Prop. of M/s Shivam Logistics requested him to file the shipping bill in respect of factory stuffed container of M/s HSIL. As he verified the IEC of M/s HSIL on DGFT website and found the same in existence, and have further received the photocopy of factory stuffing permission. Sh. Anant Kumar informed that he had got the paper/ documents through M/s Toshnek International Forwarders. However, he does not know Partner of M/s Toshnek International Forwarders. That towards satisfaction of KYC norm, he had verified the particulars of the exporters from DGFT website. Sh. Ajuhurul Islam, ‘G’ Card holder was also interrogated and in his statement he stated that he has filed shipping bill on the basis of information and documents provided by Sh. Rajinder P. Kapoor, CHA; further stated that he was not aware as regards the mis-declaration with regard to the goods being exported.

13. Statement of Sh. K.S. Pandiyan, Manager of M/s Neptune Cargo Movers Pvt. Ltd.,-CHA was recorded who inter alia stated that he is working as Manager since 2007, that he is ‘G’ card holder and he is duly authorised to complete all formalities. Further, stated that he has not filed any shipping bill for M/s GPR Exports Pvt. Ltd., and M/s HSIL. However, Sh. Puran Singh, ‘G’ card holder signed Annexure–A for export invoice dated 14.01.2011 and 17.01.2011; the further stated that they were working with normal remuneration. Further, stated that Sh. Rakesh Kumar was known to him for last three years, had come to him and requested for clearance of four containers of regulators, which were factory stuffing and duly sealed by the Central Excise, as the regular CHA refused to clear the container. He further stated that on humanity ground he asked Sh. Puran Singh to sign the Annexure-A to the shipping bill.

15. Statement of Sh. Rajeshwar, Inspector of Central Excise, Range-III, Bahadurgarh Division Sonepat was also recorded on 27.05.2011, wherein he, inter alia stated that as per their office record M/s HSIL is registered under Central Excise Department and further stated that no unit in the name of M/s V. G. Plastic is registered. Further, stated that the documents for export like Annexure-C, ARE-1 were never processed by him and the rubber stamp of Inspector affixed on the document, commercial invoice and packing list are also forged, including the signature of Inspector.

16. Statement of Sh. N. K. Gupta, Superintendent of Central Excise, Range-III Bahadurgarh Division Sonepat was recorded who also stated that though M/s HSIL is registered in their jurisdiction M/s V. G. Plastic is not registered. He further stated that the documents related to export in the name of M/s HSIL and in the name of M/s V. G. Plastics was not processed by him, and the rubber stamp affixed on the same are forged including the signature.

17. Statement of Sh. Ram Avtar, Driver of Truck No. HR 38M 4688 was recorded wherein he, inter alia stated that on the night of 02.02.2011 he had gone to Bakoli godown to load the empty container and parked the truck near Sai Dharamkanta. Further stated that when the party came to him and took him to the godown where bags were loaded i n the empty container, the godown was stuffed with rice.

18. Sh. Abhishek Gupta, Partner of M/s C. L. International failed to appear inspite of summons issued to him. It appeared to Revenue that Sh. Sinder Pal and Sh. Abhishek Gupta are involved in the illegal export of non-basmati rice (prohibited goods) and Sh. Rakesh Dhamir and Sh. Rakesh Kumar have knowingly connived in unlawful activities and thus abeted in forging the Central Excise documents, affixing fake seal and fraudulently using the IEC code of others form with intent to aid and abet export of the prohibited goods. Thus, these persons were aware of the violation and were intentionally and knowingly involved in the act of smuggling. Accordingly, this appellant alongwith Sh. Sinder Pal, Sh. Abhishek Gupta, Sh. Rakesh Kumar, Sh. Rajinder P. Kapoor and M/s Naptune Cargo Movers Pvt. Ltd., were required to show cause as to why the prohibited goods (non-basmati rice) should not be confiscated under Section 113 of the Customs Act and further penalty was proposed under Section 114 of the Customs Act on Sh. Sinder Pal and Sh. Abhishek Gupta, Sh. Rajesh Dhamir and Sh. Rakesh Kumar. Further, penalty was proposed under Section 117 on the two CHAs – M/s Naptune Cargo Movers Pvt. Ltd., and Sh. Rajinder P. Kapoor. This appellant and others have contested the show cause notice, vide order-in-original dated 20.03.2012, the non-basmati rice was absolutely confiscated under Section 113(h) and (i). Further, penalty under Section 114 was imposed i) on Sh. Sinder Pal Rs. 10 lakhs, ii) on Sh. Abhishek Gupta – Rs. 6 lakhs, iii) on Sh. Rakesh Dhamir (appellant Rs. 8 lakhs) iv) on Sh. Rakesh Kumar – Rs. 2 lakhs. Further, penalty of Rs. 50,000/- was imposed under Section 117 on the two CHAs – M/s Neptune Cargo Movers Pvt. Ltd., and Sh. Rajinder P. Kapoor.

19. Being aggrieved, this appellant approached before the Commissioner (Appeals) inter alia on the following grounds-

i) The submissions made in the reply to show cause notice were not considered by the adjudicating authority.

ii) The appellant at the first opportunity retracted his statement when he was produced before the Court of Duty Magistrate in the Patiala House Court. A retracted statement had no evidentiary value.

iii) No case can be foisted on the basis of the statements of co-accused.

iv) In the search of appellant’s premises nothing incriminating was recovered, clearly indicated that the appellant had nothing to do with the entire episode and had become a victim of nefarious design of Sh. Sinder Pal.

v) The recovery of fabricated documents/ passport/ stamps of government officials was from Sh. Sinder Pal’s premises.

vi) All the documents were created, all stamps were affixed and all the containers were sealed by Sh. Sinder Pal without the knowledge of the appellant.

vii) No charges can be levelled solely and only on the basis of uncorroborated statements of co-accused. Relied on the judgment of the Tribunal in the matter of Pradeep Sah -2006 (197) ELT 301 (Tri.) and in Mehmood Khan – 2002 (140) ELT 97 (Tri.).

20. Learned Commissioner (Appeals) recording the finding that the appellant had evidently involved himself in the illegal export of non-basmati rice and have also admitted his role in so many words in his various statement recorded, and also have explained the details of modes operandi. Accordingly, the appeal was dismissed upholding the imposition of penalty. Being aggrieved, the appellant is before this Tribunal.

21. Learned Authorised Representative appearing for the Revenue relies on the impugned order.

22. Having considered the rival contentions, so far the objection as to jurisdiction of Additional Commissioner (SIIB) to issue show cause notice is concerned, I hold that it is not the case of demand of duty from this appellant under Section 28(4). Accordingly, I hold that the issue of jurisdiction is not involved and the show cause notice have been rightly issued on the allegation of violating the provisions of the Customs Act including bringing of the prohibited goods in the customs area, for export, by resorting to mis-declaration. From a conjoint reading of the statements of this appellant alongwith the statement of Sh. Sinder Pal, Sh. Rakesh Kumar and Others, it is evident that this appellant have knowingly connived for money with Sh. Sinder Pal and Sh. Abhishek Gupta and others, in the export of prohibited goods, non-basmati rice, by resorting to mis-declaration and fraud. Further, admittedly in the course of various statements recorded on different dates from this appellant he has admitted the modus operandi and have stated in detail the modus operandi as well as the amount of remuneration he was getting from Sh. Sinder Pal, which leads to the conclusion that he had connived with Sh. Sinder Pal and Sh. Abhishek Gupta in the export of prohibited goods for money.

23. Accordingly, I confirm the penalty imposed upon him but in the facts and circumstances reduce the penalty from Rs. 8 lakhs to Rs. 4 lakhs. So far the retraction is concerned before the Court of Duty Magistrate, I find that the same is not of much consequence as the appellant have admitted the misdoing in his various statements recorded on various dates and such statements are supported by co-accused and also corroborated with the live consignment for export, intercepted, and forgery noticed by the Customs Officers to which the appellant has also admitted.

24. The appeal is allowed in part.

(Pronounced on 30.03.2022).