Decided on October 15,1991

Jagmohan Singh Sawhney Appellant


S.L. Peeran, Member (J) - (1.) IN the stay application, the applicant is aggrieved with the imposition of personal penalty of Rs. 35,000/ - by the Additional Collector of Customs, New Delhi, under Section 112 of the Customs Act, 1962, on the allegation that the applicant was trying to clear 2 lakh pieces of tangsten (sic) disks valued at Rs. 1,60,000/ -. These goods are sought to be restricted items under Import Trade Control Act
(2.) THE allegation made against the applicant as made out in the show cause notice dt. 10.4.1987 that the officials of Customs (Preventive) staff of IGI Airport, New Delhi gathered information that two packages arrived by PAN AM Flight PA. 66 on 7.7.1986 covered by PAN AM Airway Bill No. 026 -61441015 and Housing Airway Bill No. 005087 and import general manifest No. 517786 consigned to M/s Deep Trading Co., New Delhi containing contrabands. The M/s Deep Trading Company had filed a Bill of Entry No. 34974 dt. 10.7.1986 through the clearing agent Mr. Sharma, Custom House Agent No. 6/77 for the release of above two packages from the Customs said to contain Tungsten Disco (sic). Enquiries were made which revealed that the above M/s Deep Trading Company was not in existence at the above address given above. The said two packages were therefore, opened and examined in the presence of two panch witnesses on 17.10.1986 and which revealed that it contained 2 lacs pieces Tungsten Discs valued at Rs. 1,60,000/ - and the same were seized under Section 110 of Customs Act, 1962. Further, enquiries were made and Col. M.L. Sharma who denied the above said Bill of Entry. Col. Sharma is said to have stated that the Bill of Entry was filed by one; that his employee Shri Subhash Dhingra has filed the Bill of Entry in the name of M/s Deep Trading Co. and it was later withdrawn. He further stated that he had no further knowledge of the and Shri Subhash Dhingra would be able to explain the matter. The statement of Shri Subhash Dhingra was recorded on 3.11.1986 who admitted having filed the said Bill of Entry on 10.7.1986. He has further stated that Shri Jagmohan Singh Sawhney claiming to be a proprietor of M/s Deep Trading Company came to him and asked him to return the said Bill of Entry as he was not interested in getting the goods cleared through them. Shri Jagmohan Singh Sawhney, applicant is said to have given a letter to Shri Subhash Dhingra to this effect and therefore, Subhash Dhingra returned the Bill of Entry to Shri Jagmohan Singh. Shri Subhash Dhingra has further stated that he was introduced to M/s Deep Trading Co. through his friend. Shri Subhash Dhingra has further stated that he does not know Shri Jagmohan Singh who was in a position to identify him. Therefore, the applicant Shri Jagmohan Singh Sawhney was summoned to the office and his statement was recorded. Shri Jagmohan Singh Sawhney in his statement recorded on 28.1.1987 denied having any connection with the said firm M/s Deep Trading Co. has totally denied his connection with the form or having dealt with any business with the said firm. He has also denied having filed the said Bills of Entry and also denied the signature on the Bill of Entry as well as on the letter -head of M/s Deep Trading Co. He stated that Shri Jagmohan Singh Sawhney said to be the proprietor of the firm may be a different person. Therefore, the Customs issued further summons to Shri Jagmohan Sawhney who did not turn up to give any statement to the Customs Office prior to confiscation. Therefore, the goods were seized (and confiscated) on 17.10.1986 under Section 110 of the Customs Act. On all these facts the said show cause notice was issued to Shri Jagmohan Singh Sawhney. The Customs have relied mainly on the statements of Subhash Dhingra given on 3.11.1986 and 3.12.1986 to implicate the applicant Sh. Jagmohan Singh Sawhney. The learned Additional Collector has passed a very brief order and both the sides have agreed before us that it is not a speaking order. The order reads as follows: I order that the above goods i.e., 2 lakh pcs. of Tangsten Disks valued at Rs. 1,60,000/ - be confiscated under Section 111 of the Customs Act, 1962. I do not give any option to redeem the same because there are no claims for the same. 1 further, impose a personal penalty of Rs. 35,000/ - on Shri Jagmohan Singh Sawhney (Rupees thirty five thousand only) for trying to clear the same fraudulently which are restricted under Import Trade Control Act under Section 112 of the Customs Act, 1962. I do not take any action against the CHA or anyone else because they have not been issued the Show Cause Notice.
(3.) SHRI Naveen Mullick submitted that final order has been passed in violation of principles of natural justice in as much as that the full hearing had not been given. The learned advocate Shri Naveen Mullick strongly urged that the order being a non -speaking and that the applicant had not claimed the goods of the seizure but yet the learned Collector had proceeded to impose the penalty, which was not legally sustainable. He further submitted that the goods in question were not addressed to the applicant but it was said to be addressed to M/s Deep Trading Co. in which the applicant had no connection or any interest. There was corroborative evidence with regard to the letterhead, signature, with statement of Shri Subhash Dhingra. He contended that admittedly the Bill of Entry was filed by the Customs Agent owned by Col. Sharma and Subhash Dhingra and therefore, the authorities should have proceeded against them and having failed to do so and without any evidence implicating the applicant has resulted in failure of justice.;

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