S.K. Bhatnagar, Member (T)

1. These are the appeals against the order of the Addl. Collector of Customs, Delhi dated 15.9.1988 passed with reference to two consignments of DMF disks received under AWB No. 555-1039-2130 and under AWB No. 555-1039-2126 received in the name of M/s. Charu International (P) Limited, New Delhi.

2. Regarding the first consignment, the Bill of Entry No. 210396 dated 10.11.87 was filed and the matter was adjudicated upon by the Asst. Collector of Customs Shri K.J. Chowdry on 17.11.87. By this order, the Asst. Collector confiscated the goods but allowed them to be redeemed on payment of fine of Rs. 10,000/- only.

3. It is the department case that before the goods could be physically released a complaint was received by the Customs from M/s. Charu International in which they stated inter alia that it appeared that somebody had used their name and imported the goods and was trying to clear the same from Customs.

4. As such the Customs preventive kept surveillance and when one Shri Rajesh-war Sharma approached the cargo unit with the documents they interrogated Shri Sharma. It is the department contention that Shri Sharma said that the goods actually belonged to one Shri Sunil Desai of Bombay who had imported the same in the name of M/s. Charu International New Delhi; and Shri Sunil Malhotra, an employee of the Customs House clearing agent Shri R.C. Verma, Shri S.K. Nayyar and Shri S.R. Parashar all employees in the Ministry of Finance, were concerned in the clearing of the consignment.

5. It was further revealed that Shri Sunil Desai was expected from Bombay on 17.11.87 and another similar consignment was also expected to arrive from Singapore at Delhi Airport.

6. The officers apprehended Shri Sanjeev Malhotra and Shri R.C. Verma on 17.11.87; Shri Sunil Desai was also apprehended at the domestic terminal on arrival from Bombay.

7. According to the department Shri Sunil Desai admitted ownership of the said goods and the other expected consignment and also confirmed the arrangement of clearance with the help of Sanjeev Malhotra, Shri R.C. Verma, Shri S.K. Nayyar and Shri S.R. Parashar.

8. The first consignment which was said to be cleared was examined and so also the second consignment on arrival and the goods in question were found.

9. Further enquiries were made by the department and thereafter the impugned show cause notice was issued on 29.8.1988 and the matter was adjudicated by the Addl. Collector of Customs Shri S.P. Singh who passed the impugned order in respect of both the consignments on 15.9.1989. By this order the learned Addl. Collector confiscated the goods in question absolutely and imposed penalty on Shri Sunil Desai, Shri R.C. Verma, Shri Rajeshwar Sharma, Shri Sanjeev Malhotra, Shri S.K. Nayyar and Shri S.R. Parashar.

10. He "discharged the show cause notice against M/s. Charu International Private Limited".

11. The learned counsel Shri Nankani stated that Shri Sunil Desai had received the show cause notice and also replied to the same.

12. Subsequently when personal hearing was offered they had requested for adjournment as the notice was too short and they had also asked for legible copies of some statements but instead of considering the request, the learned Addl. Collector passed the order ex parte, without giving them an opportunity of being heard in the matter.

13. It was also their submission that when the appellant arrived from Bombay he was apprehended and his statement was recorded under duress while he was still under detention.

14. He was also detained under COFEPOSA but was released by the Hon'ble High Court.

15. It was also their contention that the appellant had retracted his statement at the first opportunity and had denied any connection with the goods.

16. They had not filed any papers for clearance of the goods and were in no way concerned with the importation or clearance thereof and were not liable to penalty.

17. That apart the impugned order has been passed with reference to two