SUSHANT AGRAWAL Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) All the appeals filed against the adjudication order passed by the Commissioner of Customs whereby the following penalties under Section 112 were imposed :

(2.) THE brief facts of the case are that M/s. Ayesha Exports and M/s. Kazal Impex which are proprietary concerns of Sh. Manish Vijhani made import of fabric and filed Bills of Entry declared the same as polyester knit fabric and claimed the classification under Heading 6002.43 of Customs Tariff. The Customs authorities had not accepted the classification claimed by the importer and after chemical test of the goods classified under Heading 6001.92 of Customs Tariff attracting higher rate of duty. During investigation statement of Sh. Anthony J. D'Souza proprietor of M/s. Elinc Clearing and Forwarding, CHA was recorded who filed the Bills of Entry regarding the consignments in question. In his statement he mentioned that the consignments were imported by two firms viz. M/s. Ayesha Exports and M/s. Kazal Impex whose proprietor is Shri Manish Vijhani. However, regarding these consignments, present appellants i.e. Sh. Sushant Agrawal, Shri Naresh Gupta and Sh. Onkar Singh also made enquiries. Thereafter, the statements of present appellants were recorded who disclosed that they were to buy imported fabric from Sh. Manish Vijhani. Therefore, they made certain enquiries from the CHA regarding the position of the import. They also paid certain advance to Sh. Mansih Vijhani for purchase of the fabric. The enquiries was also conducted from the banks regarding existence of M/s. Kazal Impex and M/s. Ayesha Exports and these inquiries also revealed that Sh. Manish Vijhani was the proprietor of these firms. Statement of Sh. Manish Vijhani was also recorded during this statement, he admitted the import of fabric in question. He also admitted that certain quantity of fabric were to be sold to the present appellant. He also admitted the fact that he had received amounts from the present appellants as advances for sale of the fabric. The adjudicating authority after issuance of show -cause notices ordered the confiscation of the goods on the ground of misdeclaration and allowed the release of the goods on payment of redemption fines and personal penalties were also imposed on M/s. Ayesha Exports, M/s. Kazal Impex, Shri Manish Vijhani and on present appellant.

(3.) THE appellants in the present appeals are not challenging the order of confiscation, they are only challenged the penalties imposed under Section 112A of Customs Act. The contention of the appellant is that there is no evidence on record to show that they have any role in mis -declaration of the imported goods. They were buyer of the imported goods which are to be imported by M/s. Ayesha Exports and they also paid certain amounts as advance to Sh. Manish Vijhani. The contention is also that during arguments before adjudicating authority Sh. Manish Vijhani submitted that he was not an actual exporter in fact the import was made on behalf of the present appellants and he had not disclosed facts earlier to the investigating authority as he was under constant threat. The contention of the appellant is that during investigation Sh. Manish Vijhani never stated this fact and he always maintained that he was proprietor of the firm M/s. Ayesha Exports and M/s. Kazal Impex and the goods were imported by him which are to be sold to the present appellant as well as other customers. The contention of the appellant is also that the other evidence relied upon by the adjudicating authority in the statement of CHA and the request for cross -examination of CHA was denied by the adjudicating authority. The contention is that even cross -examination of CHA was denied. The statement made under Rule 108 of Customs Act by CHA only discloses the fact that the present appellant enquired about the import of goods in question. The contention is that as they were already paid advance payments of Sh. Manish Vijhani, therefore, they were interested in the clearance of the goods. Merely making the enquiry from CHA does not mean that they were party to the mis -declaration of the goods in question, therefore, the penalty imposed on the appellant are not sustainable.