1. Heard both sides. As regards, Customs Appeal No. CDM-208/04 filed by M/s Soham Impex Pvt. Ltd. and Customs Appeal No. CDM-209/04 filed by Shri Supriyo Chowdhury, we find that both the appellants were directed to predeposit amounts of Rs. 2.00 lakhs (Rupees two lakhs) and Rs. 50,000/- (Rupees fifty thousand) respectively under the Tribunal's order dated 20.3.06 and they were directed to report compliance by 29.5.06. Despite extention to predeposit granted in between, both the appellants have not predeposited the amounts nor they have reported compliance. As such, both the appeals are dismissed for non-compliance with the direction of predeposit read with provision of Section 129E of the Customs Act, 1962.
2. As regards, Customs Appeal No. CDM-210/04 filed by Shri Debabrata Das, Shri A.C. Tikadar, ld. Consultant appearing for the appellants states that the appellant was merely a friend of Shri Supriyo Chowdhury at whose instance he carried the documents and he is no where concerned with the case made out against M/s Soham Impex Pvt. Ltd. and Shri Supriyo Chowdhury. He further states that he is an employee of another clearing agent namely, M/s Oriental Clearing and Forwading Agency who is not involved in this case. He further states that he is now out of job and being a poor employee earning of Rs. 1500/- per month it is not possible for him to pay heavy penalty of Rs. 2.00 lakhs (Rupees two lakhs) imposed on him.
2. Heard the ld. DR for the Department, who reiterates the findings of the adjudicating Commissioner in page 26 & 27 of the impugned order which are as follows: Coming to the penalty proposed against Shri Debabrata Das, I find that in the voluntary statement dated 28.5.02, he stated that he was working as an Operation-in-Charge of M/s Soham Impex Pvt. Ltd. on part time basis on a monthly salary of Rs. 6,000.00 though he was at present working with M/s Oriental Clearing & Forwarding Agency, Calcutta. I also find that on being asked by Customs Officers he admitted that as per his directions the consignment of five packages was loaded in the Tata Sumo bearing Registration No. WB-02H-4003. He also admitted that all the import documents found at that time were in his possession ; that he was not able to explain the discrepancy detected by the officers.
I find that from the reply submitted by Shri Das, that he has put forth the plea that he did not receive the show-cause notice until the month of June, 2004. I find that as the Notice was issued to Shri Das as Operation-in-Charge of the Importer as the identity given by Shri Das in relation to the impugned goods, if the Notice was not made available to him by the Importer unit, no blame can be put upon the Department.
The Noticee Shri Das has made the plea that his Clearing Agent Licence being Licence number 0-11/50 had been seized by the Customs in the instant case and the said licence has not yet been returned to him inspite of the fact that the said licence has not been used as a document relied upon in issuing the instant show-cause notice.
I find that since as a CHA employee, Shri Das is governed by the CHA Regulations and the said detention/seizure of said Licence is a subject matter of the proceedings under CHALR, the plea is beyond the scope of the instant proceedings. In the instant case, what is being looked into is the role played by Shri Das in the capacity of part-time employee as Operation-in-Charge of the Importer in relation to the impugned goods. Shri Das has further submitted that at the time the incident took place, he was employed with M/s Oriental Clearing & Forwarding Agency and had been drawing salary as such employee and that he knew Mr. Supriya Chowdhury the Director of M/s Soham Impex Pvt. Ltd. for the part 12-13 years and Mr. Chowdhury had become his good friend and had been supportive to him in his period of struggle, He has further stated that due to such friendship, Mr. Chowdhury used to take his help once in a while for the purpose of understanding the intricacies and paper work related to trade. I find that amazingly at this stage he has denied being employed by the Importer ever. In view of his voluntary statement stating that he was a part time employee, I am compelled to accept this denial of being employed by the importer as a mere afterthought.
I find that Shri Das has repeatedly stressed that due to the friendship he had accompanied him in the clearance work. However, as Shri Das is no layman who would not know what is an import invoice or import document, he being a CHA Employee himself, the plea taken appears to be too simplistic that he would not know what documents he was carrying in his portfolio bag.
Regarding the plea that even after on examination when discrepancy in description was detected, he was unaware of the difference between watch movements and LCD module and thereafter had no idea whatsoever of any kind of mischief or mis-declaration or any malicious intent, I find that being an old hand in the Clearance Job, Shri Das cannot take the recourse to the ignorance.
From above I hold that it is possible that Shri Das may not be knowing in advance what was going on, but once he had access to the documents as proof of discrepancy, he had the knowledge about the illegal act of Misdeclaration, hence he is liable for penalty under Section 112 of the Customs Act, 1962.
3. After hearing both sides and perusing the case records, we find that the ld. Adjudicating Commissioner has a adequately dealt with the case in favour of the appellant. The possession of the incriminating documents corroborates the voluntary statement given by him on 28.5.02, where he has confessed that he was working part time on a salary for M/s Soham Impex Pvt. Ltd. in addition to working with M/s Oriental Clearing and Forwarding Agency. He has also confessed about his involvement in the clearance of the impugned consignment. As such, we are of the view that the appeal filed by the appellant, Shri Debabrata Das has no merit.
4. However, considering the plea of the financial difficulty advanced by the ld. Consultant, we are of the view that the ends of justice would be meeting the penalty of Rs. 2.00 lakhs (Rupees two lakhs) imposed on him and the penalty is reduced to Rs. 1.00 lakhs (Rupees one lakh). We order accordingly. But for the above modification, the appeal filed Shri Debabrata Das is otherwise rejected.
5. In the result, Appeal Nos. CDM-208, 209/04 are dismissed for non-compliance and in respect of Appeal No. CDM-210/04, the penalty is reduced to Rs. 1.00 lakh (Rupees one lakh), but the appeal is otherwise rejected.