Vishnu Kumar vs Commissioner Of Customs New Delhi
2010 Latest Caselaw 2529 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment Reserved on: 05.05.2010
                                  Judgment Delivered on: 12.05.2010

+              CUSAC 8/2009

VISHNU KUMAR                                                     ... Appellant


                                   - versus -


COMMISSIONER OF CUSTOMS NEW DELHI                              ... Respondent

Advocates who appeared in this case:
For the Appellant   : Mr C. Harishankar and Mr S.Sunil
For the Respondent  : Mr Mukesh Anand and Mr Shailesh Tiwari



     1.   Whether Reporters of local papers may be allowed to
          see the judgment?                                                 Yes
     2.   To be referred to the Reporter or not?                            Yes

     3.   Whether the judgment should be reported in Digest?                Yes

V.K. JAIN, J.

1. This appeal under Section 130 of Customs Act, 1962

is directed against the order dated 04.06.2009 passed by the

Customs, Excise and Service Tax Appellate Tribunal (CESTAT),

whereby it allowed the appeal filed by the respondent against

Order-in-Original No. KRB/ACE/08/05 dated 09.06.2005

passed by the Commissioner of Customs (Exports) and

imposed a penalty of Rs10,000/- upon the appellant.

2. The following question of law arises for our

consideration in this case:

"Whether the finding of the Customs, Excise and Service Tax Appellate Tribunal that the appellant is liable for penalty under Section 112(a) of the Customs Act, 1962 on the charge of abetment is perverse?"

3. On 12.10.2002, the officers of Directorate General of

Revenue Intelligence, on receipt of information regarding

smuggling of contraband goods through speed post parcels,

visited Speed Post Centre at Bhai Vir Singh Marg, New Delhi

and identified 8 parcels, including 4 parcels received from

Singapore and addressed to M/s Beam Technology. It was

noticed that the declaration, pasted on these parcels, did not

contain information regarding description, value and quantity

of goods, in terms of Section 82 of Customs Act. On opening

the parcels, they were found to contain computer parts which

attracted payment of custom duty. It was also found that the

description and quantity of the goods, as noted in the invoice,

found in the parcels, were different from the actual description,

quantity and value of the goods. Since the goods appeared to

be illegally imported into India, the same were placed under

seizure. During the course of enquiry, statement of one

Kumesh Chauhan, who had earlier been delivering parcels to

M/s Beam Technology, was recorded. He informed that 9

similar parcels, addressed to Shri Sandeep Sehgal at the

address of M/s Beam Technology, were delivered by him on

11.01.2002 and no custom duty was charged in respect of

those articles. Those 9 parcels were cleared for duty free

delivery by Shri Rajesh Kumar, Customs Inspector posted at

that Centre. In his statement, Shri Rajesh Kumar, Customs

Inspector admitted that in respect of the 9 parcels, which were

marked by him for duty free delivery, there was no customs

declaration and those parcels were similar to the 4 parcels

seized by DRI on 12.10.2002. On enquiry being made from the

appellant Vishnu Kumar, who was a Sorting Assistant in the

Centre, he stated that one Kishori Lal, who was posted as a

Postal Clerk at Foreign Post Office and was his friend had

asked him to keep a watch on parcels meant for some parties,

including M/s Beam Technology and M/s Abhishek Electronics

and inform him about their arrival. He further stated that he

used to do the needful on account of his friendship with

Kishori Lal and that all the parcels, regarding which Kishori

Lal had made enquiries, were sent directly to the parties for

duty free delivery, without sending them to Foreign Post Office

for customs examination. He also admitted that on

11.10.2002, 9 parcels of M/s Beam Technology and two

parcels of M/s Abhishek Electronics had been cleared by Shri

Rajesh Kumar, Customs Inspector for duty free delivery. In his

statement, Shri Kishori Lal stated that one Sandeep Sehgal,

proprietor of M/s Beam Technology, used to approach him and

pay him Rs15,000/- per parcel to get them cleared, without

payment of duty and that he used to share this money with

Rajesh Kumar, Customs Inspector. He also admitted that 9

parcels cleared on 11.10.2002, in the name of M/s Beam

Technology, were cleared for duty free delivery, with the help of

Customs Inspector Shri Rajesh Kumar. He further stated that

between August, 2002 to 11th October, 2002, he had got

cleared about 30-40 parcels, containing computer parts,

without payment of duty and had received Rs 5 lakhs, half of

which, was given by him to Shri Rajesh Kumar. He stated that

he did not inform the appellant Vishnu Kumar about the

contents of the parcels though he had given Rs 200/- to him.

Shri Rajesh Kumar, Customs Inspector, corroborated the

statement of Shri Kishori Lal and also implicated his senior

officers. Shri Sandeep Sehgal was also examined and he

admitted having imported computer parts without payment of

duty and also having paid Rs15,000/- per parcel to Shri

Kishori Lal.

4. The Commissioner of Customs (Exports) imposed

penalty of Rs 10,000/- upon the appellant Vishnu Kumar in

respect of parcels meant for M/s Abhishek Electronics, vide

Order-in-Original No.RSS/ACE/32/2003 dated 28.11.2003/

2.12.2003. But, in the appeal, filed by the appellant Vishnu

Kumar against that order, the penalty was set aside by

CESTAT vide its order dated 28.03.2005.

5. In respect of the parcels delivered at M/s Beam

Technology, the Commissioner of Customs (Exports) vide

Order-in-Original No. KRB/ACE/08/05 dated 09.06.2005,

imposed penalties upon Shri Sandeep Sehgal, proprietor of

M/s Beam Technology, Shri Rajesh Kumar, Shri Kishori Lal

and Shri Joginder Gulati. He, however, dropped the charges

against the appellant Vishnu Kumar. The persons on whom

penalty was imposed by the Commissioner of Customs

(Exports) filed appeals, challenging the order passed by the

Commissioner. Department also filed an appeal against the

order passed by the Commissioner dropping charge against the

appellant Vishnu Kumar. While upholding the penalty

imposed upon Shri Sandeep Sehgal, Shri Rajesh Kumar and

Shri Kishori Lal, the Tribunal also set aside the order of the

Commissioner dropping the charge against the appellant

Vishnu Kumar and imposed a penalty of Rs10,000/- upon him

under Section 112(a) of Customs Act. While, allowing the

appeal of the department against the appellant, the Tribunal,

inter alia, held that from the statement of the appellant, it was

clear that he had also abetted in this illicit import and

clearance of dutiable goods, without payment of duty.

6. Section 112(a) of Customs Act, to the extent it is

relevant, provides that any person who in relation to any

goods, does or omits to do any act, which act or omission,

would render such goods liable to confiscation under Section

111 or abets the doing or omission of such an act, shall be

liable to penalty, to the extent stipulated in the Section.

7. Section 82 of Customs Act, to the extent it is relevant,

provides that in the case of imported by post, any label or

declaration, accompanying the goods which contains the

description, quantity and value thereof, shall be deemed to be

an entry for import for the purpose of the Act.

8. In the impugned order, the Tribunal has referred to

certain notifications which put restrictions on import of goods

through post parcels and permit the import of goods through

post parcels only when such parcels bear, on the front, a

declaration, giving description, weight and value of the

contents of the parcels. The Tribunal was of the view that the

notification issued under Section 11 of Customs Act has to be

treated as a notification, imposing restriction on the import of

goods through post parcel/letter packet, unless the same are

accompanied by a declaration declaring the nature, weight and

value of the contents. It was not disputed before the Tribunal

that the 4 parcels seized by DRI on 10.12.2002 did not have

declaration mentioning their description weight and value of

their contents. It was noted by the Tribunal that there was

evidence on record to indicate that this was not an innocent

omission since clearance of the post parcels for duty free

delivery at the sorting stage, without sending the same to

foreign post office, would have been impossible if the actual

description, quantity and value had been declared on the

Declaration Form pasted on the parcels. The Tribunal,

therefore, held that the goods seized by DRI on 10.12.2002 had

been imported contrary to the prohibition imposed under

Section 11 of Customs Act and, therefore, had rightly been

confiscated under Section 111(d) of the Act. The finding of the

Tribunal to the extent it held that the goods, seized by DRI,

were liable to confiscation under Section 111(d) of the Act has

not been disputed before us.

9. The next question which comes up for consideration

is as to whether the appellant had abetted in the act committed

by the importers of these goods. The expression "abetment"

used in Section 112(a) of Customs Act has not been defined in

the Act. However, Section 107 of IPC defines "abetment" as

under:-

"107. Abetment of a thing.-A person abets the doing of a thing, who-

First: -Instigates any person to do that thing; or

Secondly: -Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly: -Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation1:- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."

10. Thus, the charge of abetment would stand

substantiated if it is proved that the alleged abettor had

instigated the doing of a particular thing or he had engaged

with one or more persons in a conspiracy for doing of that

thing or he had intentionally aided doing of that thing by an

act or illegal omission. In order to constitute abetment by

conspiracy, there must be a combination of two or more

persons in the conspiracy and an act or illegal omission must

take place in pursuance of that conspiracy. Where the parties

concert together and have a common object, the act of one of

the parties done in furtherance of the common object and in

pursuance of the concerted plan, is the act of the whole. It is

not sufficient to prove that the charged act could not have been

committed without intervention of the alleged abettor. What is

necessary is that the intervention should have been made with

intent to facilitate the commission of that act. Intentional

aiding, therefore, is the gist of abetment, as defined in clause

thirdly of Section 107 of IPC. If there is a community of

interest between the aiding person and the person who

commits the actual act, it can be safely inferred that the

dominant intention of the alleged abettor was to aid the doing

of that particular act.

11. As regards the standard of proof required to prove

the charge of abetment, for the purpose of Section 112(a) of

Customs Act, it is settled proposition of law that though the

penalty proceedings under Customs Act,1962 are quasi-

criminal in nature, the Department is not required to prove its

case beyond reasonable doubt, as is required to prove

commission of an offence in a criminal prosecution and it is

sufficient if the guilt attributed to the charged person is

established on a preponderance of probabilities. As observed

by the Supreme Court in Collector of Customs, Madras &

Others vs. D.Bhoormull: 1983 ELT 1546(SC), all that is

required to be established is such a degree of probability that a

prudent man may, on its basis, believe in the existence of the

act in issue.

12. As noted earlier, the parcels in question did not have,

on them, the prescribed declaration giving the description,

weight and value of the goods that were imported into India.

The appellant did not bring this material fact to the notice of

Customs Inspector, posted at the Centre. When an official

engaged in sorting of such parcels finds a parcel without

requisite declaration pasted on its front, he, if acting bona fide,

is bound to get suspicious and bring this fact to the knowledge

of the Customs Inspector posted at the Centre so that he could

send such parcel to the Foreign Post Office for the purpose of

its examination before clearing it for delivery to the person for

whom it has been sent. This is not the case of the appellant

that he had brought this fact to the notice of the Customs

Inspector Shri Rajesh Kumar.

13. It is not in dispute that as and when any parcel was

received at his Centre for M/s Beam Technology or M/s

Abhishek Electronics, the appellant used to watch those

parcels and inform Shri Kishori Lal. According to him, Shri

Kishori Lal used to inform him in advance about the arrival of

the parcels and used to tell him to keep an eye on it. In his

statement, the appellant further stated that in the Month of

August, 2002 when he was posted as Arrangement Clerk at

this Speed Post Centre, Kishori Lal suddenly increased

friendship with him and though he felt disgusted in informing

Kishori Lal about the arrival of parcels, he still used to inform

him on account of his friendship with him. He also stated that

all the parcels about which Kishori Lal had enquired from him

were sent directly to the parties, without first sending them to

Foreign Post Office. He also admitted that on 11-12th October,

2002, Kishori Lal had enquired about arrival of parcels of these

parties and he had informed Kishori Lal accordingly. He

further admitted that the Customs Inspector had released 9

parcels of M/s Beam Technology and two parcels of M/s

Abhishek Electronics on 11.10.2002, without detaining and

charging any duty. He also admitted that he used to watch the

Inspector silently as to what he did with the parcels and that

even if the Customs Inspector detained the parcels, he used to

inform Kishori Lal about the same.

14. If an outsider asks an employee engaged in sorting

out of parcels received from abroad, to keep watch on the

parcels, which are not meant for him, but are meant for some

other person(s), and are to be received regularly the employee if

acting bona fide, will in such circumstances, definitely ask him

as to why he was interested in those parcels and what

connection he had with the persons to whom the parcels had

been sent. The appellant does not claim to have made any

such enquiry from Shri Kishori Lal. The act of the appellant in

keeping a silent watch on what the Customs Inspector did with

the parcels and informing Kishori Lal about it, is also a strong

circumstance which suggests that the appellant believed that

the parcels contained dutiable goods. That precisely was the

reason for keeping a watch of what the Customs Inspector did

with the parcels and informing Kishori Lal about it. The very

fact that the appellant himself felt disgusted in informing

Kishori Lal about the arrival of these parcels also is a strong

circumstance which suggests that he knew that Customs Duty

was being evaded by clearing those parcels without first

sending them to Foreign Post Office for the purpose of

examination. Had that not been the case, there would be no

reason for him to feel disgusted or ashamed of what he was

doing.

15. The appellant admittedly having known that the

Customs Inspector had released 9 parcels meant for M/s Beam

Technology and two parcels of M/s Abhishek Electronics on

11.10.2002, without detaining them and without charging any

duty, his act in informing Kishori Lal about arrival of four more

parcels on 12.10.2002 leaves no reasonable doubt that he

knew that the parcels being cleared by Shri Rajesh Kumar,

Customs Inspector contained dutiable articles and, therefore,

ought to have been sent to Foreign Post Office for their

examination. It is thus quite clear that the appellant was

aiding in clearance of dutiable goods without payment of

requisite Customs Duty.

16. It has come in the statement of Kishori Lal that he

used to give Rs 200/- to the appellant. The statement of

Kishori Lal not being exculpatory in nature, it can be used not

only against him, but also against the appellant. As noted by

the Supreme Court in Naresh J. Sukhawani vs. Union of

India: AIR 1996 SC 522, the statement made before the

Customs Officer is not a statement recorded under Section 161

of the Code of Criminal Procedure and is a material piece of

evidence collected by the Customs Officers under Section 108

of Customs Act and such material can certainly be used

against the appellant.

17. The learned counsel for the appellant has referred to

the decision of the Supreme Court in Shri Ram vs. The State

of U.P.: (1975) 3 SCC 495. One of the appellants before the

Supreme Court was convicted under Section 302 of IPC read

with Section 109 thereof. During the course of the judgment,

it was observed that in order to constitute abetment, the

abettor must be shown to have "intentionally" aided the

commission of the crime and the mere proof that the crime

charged could not have been committed without the

interposition of the alleged abettor is not enough compliance

with the requirements of Section 107 of IPC. It was further

observed that intentionally aiding and therefore active

complicity is the gist of the offence of abetment under the third

paragraph of Section 107.

18. Knowledge and intention being state of mind, it may

not be possible to prove them by way of direct evidence and

they have to be primarily inferred from the act and conduct of

the charged person, which need to be analysed in the light of

attending facts and circumstances of the case. The facts and

circumstances of the present case lead to an irresistible

conclusion that the appellant knew that the parcels sent to

M/s Beam Technology and M/s Abhishek Electronics contain

dutiable goods and he, despite knowing this fact, facilitated the

evasion of customs duty, firstly by informing Kishori Lal about

the arrival of these parcels in the Speed Post Centre and about

the treatment given by the Customs Inspector to those parcels

and then by not bringing it to the notice of the Customs

Inspector that these parcels did not have the mandatory

declaration giving description, quantity and value of the goods,

on them. Obviously, the purpose of keeping Kishori Lal

informed about the arrival of these parcels was to enable him

to speak to the Customs Inspector Rajesh Kumar so that he

does not detain them and does not send them to Foreign Post

Office for their examination. Receipt of money by the

appellant from Kishori Lal indicates that he knew that duty

was being evaded by clearing those parcels without

examination and that is why he was being paid for the

information being passed by him to Kishori Lal. Therefore, the

judgment, relied upon the by the learned counsel for the

appellant is of no help to him.

19. The facts and the circumstances of the present case

show that the appellant was a party to the conspiracy,

pursuant to which customs duty was being evaded by clearing

dutiable goods, without sending the parcels, containing those

goods, to the Foreign Post Office for the purpose of examination

and he also intentionally aided in evasion of duty. The

evidence available on record in the form of statement of the

appellant recorded under Section 108 of Customs Act, coupled

with the statement of Kishori Lal is sufficient to prove the

complicity of the appellant in evasion of customs duty.

20. It was contended by the learned counsel for the

appellant that since the penalty against the appellant by the

CESTAT in respect the parcels addressed to M/s Abhishek

Electronics, the same treatment needs to be given to him in

respect of the parcels addressed to M/s Beam Technology. We

find that no such submission was made by the appellant

before the CESTAT. We, therefore, are not inclined to entertain

this plea at this stage.

21. The tribunal has returned a finding of fact that the

appellant had abetted in the illicit import and clearance on

dutiable goods without payment of duty. The finding recorded

by the Tribunal cannot be said to be perverse in any manner.

No substantial question of law arises for our consideration in

this appeal. The appeal is, accordingly, dismissed.

(V.K. JAIN) JUDGE

(BADAR DURREZ AHMED) JUDGE May 12, 2010 bg/