9911796707
TMI Blog2011 (2) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 April 2001, the vessel was located at Bombay Floating Lights Area, about eight nautical miles from Bombay coast. Between 26 April 2001 and 15 May 2001, the vessel was found sailing between Bombay coast and Gujarat coast. Ultimately, on 1.6.2001, the vessel was stopped by Coast Guard in mid-sea off the coast of Porbandar. The master of the ship was asked to produce documents, which he could not do. The vessel was directed to proceed to Porbandar port. On 3.6.2001, Customs officers seized the vessel after finding a stock of 429 MTs of diesel therein, which was also seized by the officers believing that the vessel was engaged in smuggling diesel. As part of further investigations, statements of the members of the crew of the vessel were recorded on 4.6.2001 under Section 108 of the Customs Act. The crew stated that 461 MTs of diesel had been discharged into the barge 'Rajveer'. It was owned by M/s Raj Transport and Trading Co (one of the appellants). The crew further stated that 66 MTs of diesel had been discharged into another vessel. Crew members were brought ashore and the investigations continued. On 14.6.2001, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el. Moon Star was also asked to show-cause as to why the fine of Rs 5 lakhs and the penalty of Rs 2 lakhs provisionally imposed and recovered from them should not be confirmed. Penalties were proposed under Section 112 of the Act on all other noticees. Subsequently, show-cause notice dated 5.12.01 came to be issued by the Commissioner of Customs (Preventive), Mumbai to all the above parties and, in addition, to M/s Raj Transport and Trading Company. This show-cause notice sought to recover customs duty on 461 MTs of High Speed Diesel Oil alleged to have been smuggled by 'Al-Rehmat' by way of discharge into 'Rajveer'. It also proposed equal amount of penalty under Section 114A of the Customs Act on the noticees. M/s Raj Transport and Trading Co were particularly asked to show-cause why the barge 'Rajveer' should not be confiscated under Section 115 (2) of the Customs Act on the alleged ground that it was used for smuggling of HSD oil. All the demands raised in this show-cause notice were proposed to be enforced 'individually and severally' against the noticees. 5. The show-cause notice dated 22.11.2001 issued by the Commissioner (Ahmedabad) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms (Import), Mumbai as the officer of Customs empowered to adjudicate both the show-cause notices. 8. Accordingly, on 22.9.2006, the Commissioner of Customs (Import) heard the counsel for M/s Moon Star, M/s Millenium and others.The counsel for Moon Star and the counsel for M/s Raj Transport and Trading Co wanted cross-examination of certain witnesses. Both of them were required to name the witnesses and state reasons why they should be cross-examined. The Commissioner required the counsel to submit their written brief on 10.10.2006. He also informed the advocate that, once the written brief was brought on record, the next date of personal hearing and cross-examination of witnesses would be communicated. The advocate for Moon Star filed preliminary written submissions on 4.10.2006, wherein it was inter alia submitted that Mr. Adi Mehta had since been discharged by the Hon'ble High Court. On the same date, the advocate for Moon Star submitted a list of witnesses. Both the advocates wanted to cross-examine six common witnesses. Four of these witnesses were employees of M/s Moon Star. One was the owner of M/s Millenium. The witnesses, lists, however, did not disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Redemption Fine of Rs 33,00,000/- (Rupees Thirty three lakhs only) in lieu of confiscation in terms of provisions under Section 125 of Customs Act, 1962. I also order to recover the Duty Rs 32.02 lakhs (27.44 lakhs + 4.58 lakhs) along with applicable interest in terms of provisions under Section 28 (1) and 28AB of the Customs Act, 1962 from Shri Abdul Kadar, Shri Satwinder Singh Padda, Shri Noshir Mehta, M/s Millenium Shipping Company LLC Dubai, M/s Moonstar Ship Trading International LLC Dubai and M/s Raj Transport and Trading Company, Mumbai. 5. I impose a penalty of Rs 32.02 lakhs (equal to the duty amount leviable on 461 MTs of HSD) on Shri Abdul Kadar, Shri Satwinder Singh Padda, Shri Noshir Mehta, M/s Millenium Shipping Company LLC Dubai, M/s Moon Star Ship Trading International LLC Dubai and M/s Raj Transport and Trading Company, Mumbai under Section 114A of Customs Act, 1962. 6.The barge 'Rajveer' vlued at Rs 25,00,000/- is confiscated under Section 115 (2) of the Customs act, 1962. As the same is not available for confiscation, the Redemption Fine Rs 12,50,000/- (Rupees Twelve lakhs fifty thousand only) is imposed in lieu of confiscation. 7. I impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 21. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on Shri Adi Mehta in terms of provisions under Section 112 of the Customs Act, 1962. 22. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on Shri Pervez Mehta in terms of provisions under Section 112 of the Customs Act, 1962. 23. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on Shri Avakshi Doctor (Manager M/s Raj transport & Trading Co., Mumbai in terms of provisions under Section 112 of the Customs Act, 1962. 24. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on M/s Ocean Marine Technical Services in terms of provisions under Section 112 of the Customs Act, 1962." 10. M/s Moon Star are aggrieved by the confiscation of 'Al-Rehmat' and the adverse findings in relation thereto. M/s Raj Transport & Trading Company and five of their employees are also appellants before us and they are aggrieved by the confiscation of the barge, and all findings in relation thereto and also the penalties imposed in connection thereto. Mr. Adi Mehta is aggrieved by the penalty imposed on him by the Commissioner despite the fact that the party had been discharged earlier. 11. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esel oil was not seized either from 'Al-Rehmat' or from the barge and that, in the absence of the goods, it was not open to the Commissioner to order confiscation (and impose fine) or impose penalty in connection therewith.The learned SDR has not succeeded in meeting this argument. On our part, we find that the decision to confiscate the above quantity of diesel oil (with option for redemption against payment of fine) and to impose penalties is solely based on the statements of some members of the crew of 'Al-Rehmat'. But all the crew members of the barge, in their statements, denied having received any stock of diesel oil from 'Al-Rehmat'. Apparently, no stock of diesel was found in the barge either. In this scenario, the request of M/s Moon Star and M/s Raj Transport and Trading Co to cross-examine the crew members assumes significance. Therefore, there is substance in the arguments of the learned counsel insofar as the confiscation of 461 MTs of HSD oil is concerned. Perhaps, if the main parties had been allowed to cross-examine some of the witnesses and also to present their case before the adjudicating authority, the findings of that authority would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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