Shri Vikram Singh vs Commissioner Of Customs And Ors.
2006 Latest Caselaw 1846 Del

JUDGMENT

Vipin Sanghi, J.

1. This is an appeal under Section 130 of the Customs Act, 1962 (for short `the Act') directed against the final order bearing No. 818-829/05-Cus, dated 9-13th May, 2005 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as `the Tribunal) in Appeal Nos. C/388/03, C/387,C/389 to 397/03 and C/549/03 directed against the order in Original bearing No. AKR/CC/ICD/TKD/31 and 32/03 dated 30th June, 2003 passed by the Commissioner of Customs, ICD, Tuglakhabad, New Delhi.

2. We have also dismissed another appeal filed by one Balwan Sharma (Custom Case No. 06/2006) arising out of the same impugned order vide a separate order. The issues raised in the appeal being the same, we are inclined to dismiss this appeal as well. However, like in the case of Balwan Sharma we have examined the facts pertaining to the case of the present appeal and are, therefore, proceeding to note the same.

3. The Appellant is an employee of Haryana Police who was earlier deputed as a gunman with Sh. Harish Kumar, I.P.S. We may note that Sh. Harish Kumar appears to be the king pin in the entire racket of clandestine import of metals in the name of M/s SIL, in which his wife was a Director. The background facts can be culled out from para 159 of the Order-in-Original passed by the Commissioner of Customs which reads as follows:

Briefly states, the facts are that on the basis of a specific information, 40 containers of M/s. Suren International Ltd. were seized at ICD, TKD on various dates from 8th August, 2001 to 25th September, 2001, after due examination and on a reasonable belief that the goods were deliberately misdeclared in respect of weight, description and value etc. In respect of 17 containers, 6 Bills of Entry were filed on 30th and 31st July, 01. Upon examination of those 17 containers, it was found that there was gross mis-declaration of weight and description of the goods. Besides, concealment of some undeclared metals also came to light. Thereafter, remaining 23 containers which arrived later and no Bill of entry wa filed to clear those containers seemingly and most likely in the fear that similar mis-declaration would be detected by the Customs, were also taken up for examination with reference to the IFM and Bill of Lading description. Total quantity of aluminium scrap and copper scrap as declared by the noticee or as shown on Bills of Lading in those 40 containers irrespective of whether or not Bills of Entry were filed were 357.226 MT's and 99.199 Mts respectively. Whereas on physical examination, the total weight of aluminium scrap and copper were found to be 365.89 Mts and 300.62 Mts respectively. Besides, 40 Mts of prime quality Tin and 42 Mts of prime quality of nickel were also recovered. Besides, 40MTs of prime quality Tin and 42 Mts of prime quality of nickel were also recovered. From the test report of representative samples drawn from the seized consignments, received from CRCL, it is seen that the percentage of purity of the samples, particularly that of mis-declared nickel and copper was higher than 99%. In respect of aluminium also the purity of most of the samples was 99% barring a few ones, where it was found to vary from 92.08% to 98.28%. The CRCL report in respect of nickel seized from Ganga Nursery godown at Vasant Kunj revealed that the purity of nickel was as high as 99.9%. The above interception of trucks and the seizure from Ganga Nursery godown were made on the basis of specific information. From the two trucks Nos. DLI GB 0749 and No. DLIL/D-0025, total quantity of 21.3 Mts. of Zinc valued Rs. 14,59,101/- together with the trucks were seized on 7th August, 2001. In Ganga Nursery godown, the total quantity of 4716 Nos. of foreign marked tin weighing 131.74 Mts. valued Rs. 3.95 crores and 36.430 Mts. of nickel valued at Rs. 1.46 crores were recovered and seized on 10th August, 2001. It goes without saying that the seizure made in the city was a follow up action of the detection and the seizure made at ICD, TKD.

4. A perusal of the order in original shows that the involvement of the appellant in the clandestine imports of metals by SIL was deep and pervasive. It appears that the appellant was the person in charge of getting the offending goods cleared from customs and in transporting, concealing and storing them. One Shri Gajendra Singh, owner of Ganga Nursery, where a part of the offending goods were found had stated that the said metal was kept in the aforesaid Ganga Nursery at the behest of one Vikram Pahalwan (the appellant herein) working in Haryana Police and attached for the last 4-5 years as bodyguard with Shri Harish Kumar Sharma, DIG, Police. Further, one Dr. Hans Nagar from whose farm house at Gadaipur, Mehrauli, large number of records/documents of SIL were recovered stated that the documents were brought there by Vikram who he discovered was always present at Mr. Harish Kumar's house. He also gave the old cell phone number of Vikram Singh. i.e. 9811060655. Shri V.K. Khanna, Manager of SIL in his statement dated 9th August, 2001 stated that he was looking after the work of customs clearance and was assisted by Sh. Vikram Singh in this work. He further stated that on 3rd August, 2001 he had visited ICD Tughlakabad along with Vikram Singh and two containers were weighed in their presence, thus, they became aware of the alert on the 17 containers. However, J.R. Sharma & Sh. Harish Kumar in their statements denied knowing the appellant or the appellant being associated with them in any manner but they have also denied their own involvement in the said racket. Thus, their statement to this extent cannot be relied upon.

5. Further, Sh. Gautam Vats, Proprietor of Goverdhan Carrier in his statement states that one Vikram used to come to ICD and had met and spoken to him regarding the business of SIL even after the case was booked in August, 2001.

6. Further, investigation of cell phone number 9811060655 revealed that the said number was in use by one Mr. Vikram and who stayed in Vasant Kunj and the number had been obtained in the name of his friend. From the said number contact had been made with Mr. Hans Nagar and with the numbers 9810066588 and 9810185964 these numbers are registered in the name of M/s Suren International (P) Ltd, Renu Mahant and in the name of Gaurav Exim Pvt. Ltd, Sonali Mahant respectively. Details of calls from the said number clearly established that Vikram referred to in statements of Gautam Vats and Dr. Nagar were one and the same. This established the active role played by Vikram Singh in import activities and customs duty evasion by SIL and also in attempting to hide the documents of the company at Dr. Nagar's farm house. Senior S. P. Faridabad had stated in his communication dated 1st January, 2002 that Vikram Singh was a gunman attached to Sh. Harish Kumar. Further, no reply to the show cause issued by the Respondent was received from the appellant. The Commissioner of Customs has noticed and rightly so that the appellant herein stated to be the bodyguard of Shri Harish Kumar (the kingpin of this racket), directly participated in the attempted clearance of mis-declared metals as a liason officer of Shri Harish Kumar. Morever, he evaded the summons issued to him and remained untraceable during entire proceedings. Further, his role was not limited to custom clearances of the impugned metal, but he also actively participated in the removal of incriminating documents from the house of Shri Harish Kumar to the farm house of Dr. Hans Nagar.

7. Since the main grievance of the Appellant before us was that the Tribunal in the impugned order had not discussed his case at all, we decided to look into the Order- in-Original for ourselves to see if any prejudice has been caused to him on account of the Tribunal not having specifically discussed the facts pertaining to the involvement of the Appellant in the whole clandestine affair. It is for this reason that we have culled out some of the salient features about the involvement of the Appellant in the clandestine removal of goods by SIL.

8. Though the Tribunal ought to have specifically dealt with his case, just like it dealt with the case of Mr. Harish Kumar in the impugned order, we feel that no prejudice has been caused to the Appellant because on an appreciation of the facts of this case, we are of the opinion that the appeal of the Appellant was rightly rejected by the Tribunal.

9. The appellant has also challenged the validity of the show cause notice on the ground that the same does not indicate the relevant clause of Section 112 of the Customs Act, under which the penalty was proposed to be imposed therein. We have already dealt with this aspect in the appeal filed by Balwan Sharma (supra) and rejected the said contention.

10. In the facts as emerging from the Order-in-Original it is seen that the case of the Appellant squarely fell under Clause (b) of Section 112 since he was involved in "carrying, removing, depositing, harbouring, keeping, concealing" of goods which he must have known or at least had reason to believe (being a close aide of the said Harish Kumar, involved in illegal activities already noted hereinabove) to be liable for confiscation under Section 111.

11. We, therefore, do not see any force in the contention of the Appellant that the Tribunal had imposed the penalty without referring to the provisions of Section 112(b) of the Act. The penalty has been imposed by the Commissioner of Customs after understanding the facts in detail and by applying the law and the Tribunal has simply affirmed that order by dismissing the Appellant's first appeal.

12. In view of the aforesaid, in our opinion, the appeal does not raise any substantial question of law for our consideration under Section 130 of the Act and accordingly we dismiss this appeal.