TMI Blog2011 (9) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... he order passed by the Commissioner of Customs (Prev.), Mumbai. 2. The Order-in-Original is passed by the Commissioner in pursuant to the remand direction of this Tribunal contained in Final Order No.C.I/1412-1415/WZB/2001 dated 16.5.01 in appeal filed by Shri Ashwini Kumar Tandon, Anoop Gandhi, Anand Giri and Vinod Chandra. In the present case only Shri Ashwini Kumar Tandon and Anoop Gandhi are appellants in the present appeals. 3. The brief facts of the case are that in pursuance to the information that smuggling of car of foreign origin was taking place by misusing the facility provided under Transfer of Residence Rules, the officers of the Mumbai Customs have seized 12 cars in the month of May/June/July 1998. Out of these 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchase would be sent to Inpub by illegal channels. Vinod Chandra and Anand Giri were two such eligible persons who agreed to import the cars in their names. On this basis, the Commissioner had passed the Order-in-Original in respect of the two cars imported under the name of Vinod Chandra and Anand Giri by the syndicate involving Shri Ashwini Kumar Tandon and Shri Anoop Gandi and imposed penalty of Rs. 2.5 lakhs each on Ashwini Kumar Tandon and Anoop Gandhi. 4. The ld.advocate appearing for the appellants submitted that the Commissioner has not followed the CESTAT direction in full inasmuch as there are striking similarities in the Public Notices, one permitting import of gold and another permitting import of car. Both ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also submitted that the finding of the Commissioner that he cannot attribute any reason for exoneration of D.K.Jain or apply the same to the present appellants as the original proceedings relating to D.K.Jain is not before him, is not correct. She also submitted that Anoop Gandhi in his reply dated 23.6.99 stated that he had filed retraction in the court when he was produced before the Learned Metropolitan Magistrate, after his arrest. Since all the statements given by Anoop Gandhi were retracted before the Metropolitan Magistrate, his original statement cannot be relied on and the penalties cannot be imposed on the appellants based on the contents of the statements. The ld.advocate submitted the following case laws in support of the case: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e main mastermind of importing the cars from Satish Tandon in Japan who was transferring foreign exchange in the name of passengers for purpose of payment of duty. He, therefore, submitted that the Commissioner has rightly imposed the penalty on both the appellants. 7. After hearing both sides, I find that in the case of Ashwini Kumar Tandon, it is a fact that Satish Tandon was his brother. A firm in name of M/s. ESS International Pvt.Ltd., New Delhi was formed where Ashwini Kumar Tandon, Satish Tandon, Anoop Kumar Gandhi and his son Vikram Gandhi are Directors and it operates from Residential address of Ashwini Tandon. He was having a business of buying and selling of used cars on commission basis and some representatives of the passeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tandon has played an active role in whole chain. 8. It has been contended by the ld.advocate that Anoop Gandhi has retracted his stagements given before the Customs when he was produced before the Metropolitan Magistrate. The Commissioner in para 18.3 of his order has discussed the issue of retraction of the statements. In the application filed by department for rebuttal of the retraction before the Metorpolitan Magistrate, it was contended by the department that the allegations were baseless and all the statements were recorded under the provisions of Sec.108 of the Customs Act voluntarily in his own handwiting and he was not subjected to any force, coercion. He has given a finding that the Court had not taken any cognizance on his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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