TMI Blog2015 (9) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... ructions, advocate for Ms. Kanchna informed that now she will not avail the option of redemption even if granted. Therefore, we are not interfering with the order of absolute confiscation. Since the courier parcel was in the name of his sister, considering the gravity and penal consequences and due to natural love and affection he initially accepted under pressure the ownership and importation of the seized courier parcel. He categorically stated that he was not concerned with the seized goods and as such he was not opposing the confiscation of the seized goods. However, he strongly opposed imposition of any penalty whatsoever on him under the provisions of the Customs Act, 1962. However, adjudication qua him was not completed with five weeks and thereafter he filed application for settlement as co-applicant, which was dismissed. No admission was made by these brothers even before the Settlement Commission. It is seen that his subsequent statements, which were also recorded under section 108, do not incriminate him or Nilesh Patel. These statements cannot be ignored. His explanation therefore seems plausible. The adjudicating authority has recorded that Ms. Kanchana appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n him. Another Appeal filed by him challenges the aforesaid Order-in-Original dated 28.3.2013 passed under erroneous assumption that no appeal was preferred against Order dated 22.11.2005 by him and thereby confirming penalty of ₹ 5 lacs on him. 4. In the earlier round, Appeals filed by said Ms. Kanchna and Nilesh B. Patel against the Order-in-Original dated 22.11.2005 imposing on them penalties of ₹ 1 Lac and ₹ 2 Lacs respectively, were allowed by way of remand by Tribunal. Thereafter, the impugned Order-in-Original dated 28.3.2013 is passed in de-novo adjudication. 5. We have carefully considered the rival submissions and the available records. The Ld. DR has supported the impugned Orders and submitted that the Appeals are liable to be dismissed by taking us through the findings recorded against the Appellants. He submitted that no case for either setting aside absolute confiscation or for setting aside or reducing penalty was made out by any of the Appellants. 6. The facts leading to issuance of show cause notice are as follows- (i) On 12.04.2005, Officers of Customs found in the import courier packages brought for clearance by M/s. Jeena Co., im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the diamonds were not called for by him. He did not know who were Som, Pannifer and Ms. Kanchana. He did not call for any diamonds and came to know about it only after getting the summons in his sister's name. He did not have contact with any person named Jadhav for helping him in his business. He did not make any calls to M/s. Fedex about anything for the delivery of the parcel under seizure, nor instructed anyone for the same. He did not misuse his sister's name for getting diamonds illegally. He did not give any instructions to Fedex for delivery of the seized parcel. He did not know the inter-relationship of Som, Pannifer or M/s. Bhargav Gems. His brother did not send parcels in his sister's name at Mumbai address. Neither he, nor his sister was telling lies about the parcel under seizure. His sister was not connected with the parcels and he did not know why the parcels were sent in her name. He stated that he was not aware of any such parcel's arrival and hence there was no question of his calling Fedex and giving any instruction regarding its delivery. He did not know Thai language and was not aware as to why such book was sent in the seized parcel. His compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The respondent filed writ petition no. 821 of 2006, challenging the interim order passed by the Settlement Commission. It is submitted without prejudice, that this writ petition was filed before expiry of time limit for filing appeal against the impugned order. 20.07.06 By an order passed by the Hon'ble Bombay High Court in writ petition no., 821 of 2006 filed by the respondent, further proceedings in the settlement application filed by the applicant, came to be stayed. Whereas the impugned order claims that goods were not dutiable, before the Hon'ble High Court the department claimed that duty leviable would be 1.58 lakhs. 07.11.07 During the pendency of this stay order by the Hon'ble Bombay High Court vide ex-parte final order passed by the Settlement Commission, the application filed by the applicant was rejected interalia for the reason that the SCN has been adjudicated by the competent authority on a specific direction to do so by the Hon'ble Bombay High Court, and no case is pending before any proper officer and hence the application merits rejection. The applicant was unaware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. or any customs officer; that she replied to the A.I.U. Summons No. AKS/229/05 vide letter dated 26-09-2005 and informed the factual position to the case wherein she has claimed the diamonds and also informed that she had invested her savings in these diamonds; that she made efforts to recall the consignment, but failed; that she chose to send the parcel at the Mumbai address of Shri Patel, in the name of Shilpaben , as she knew Patel's brother and other family members in India; that she could have even collected the same at the office of the courier company itself that cut and polished diamonds seized by the department are not prohibited goods, for the purpose of importation into India that she is the owner of the seized diamonds, and is claiming the release of the diamonds, by accepting her true duty liability; that it was the first courier consignment sent by her; that she is not a habitual offender and she will never indulge in such fraudulent practice in future; that she further prays that the said diamonds may kindly be released to her on a nominal redemption fine and leviable Customs duty. 9. It is also a matter of record that Ms Kanchna had earlier filed an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dulent manner. Vide letter dated 26-09-2005, I replied to the summons and informed the factual position to the AIU. A copy of the said letter is annexed hereto and marked as Exhibit-'A'. I claimed the diamonds and I also informed that I had invested my savings in these diamonds. I made efforts to recall the consignment, but I failed. I also informed that I chose to send the parcel at the Mumbai address of Shri Patel, in the name of Shilpa Ben , as I knew them. 10. I say that I could have collected the parcel through Mr. Jimmy immediately upon delivery of the parcel at their residence, or could have even collected the same at the office of the courier company itself. 11. Vide this letter dated 26-09-2005, I categorically informed the officers of the Customs department that it was the first courier consignment sent by me, 12. A Show Cause Notice bearing F. No. SD/INT/AIU/UNI-2/2005/STF dated 29/09/2005 has been received by me. The said Show Cause Notice is not annexed and marked as Exhibit - 'B' is a copy of the Show Cause Notice bearing F. No. SD/INT/AIU/UNI-2/2005/STF dated 29/09/2005. 13. The imported diamonds have not been released, till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the second part of Section 125(1) of the Act where the adjudging officer is under mandatory duty to give option to the person found guilty to pay fine in lieu of confiscation. Section 125 of the Act leaves option to the officer to grant the benefit or not so far as goods whose import is prohibited but no such option is available in respect of goods which can be imported, but because of the method of importation adopted, become liable for confiscation. Hon'ble Madras High Court in T Elavarasan, 2011 (266) ELT 167 (MAD HC), was pleased to rely on the said judgment of Hon'ble Andhra Pradesh High Court and held that an option has to be given to the petitioner to pay the applicable customs duty and the redemption fine and to get the gold jewellery released, as per Section 125 of the Customs Act, 1962. A larger Bench of this Tribunal in Peringatil Hamza vs. CC Airport, Mumbai - Appeal No. C/65/08 vide order dated 23.6.2014 in Appeal No. C/65/08-MUM held that currency beyond permissible limit are prohibited goods, however, without these binding precedents in the context of section125 were not brought to notice of the larger bench. Further, in Asian Food Industries, 2006 (204) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of settled principles of statutory interpretation as held in Ramesh Mehta vs Sanwal Chand Singhvi, (2004) 5 SCC 409. Under section 125 of the Customs Act, unless the importation or exportation of goods is expressly 'prohibited', the Adjudication Authority is obliged to offer to the Owner the goods an option to pay fine in lieu of confiscation. Since the import of 'cut and polished diamonds' is not expressly prohibited under Section11 of the Customs Act, 1962 or by any other statutory notification, we find merit in the ground that an option to redeem them on payment of fine in lieu of confiscation was mandatory. However, after conclusion of the hearing, on instructions, advocate for Ms. Kanchna informed that now she will not avail the option of redemption even if granted. Therefore, we are not interfering with the order of absolute confiscation. 12. Now, so far as Bhargava Patel and Nilesh Patel are concerned, it is seen that Bhargav B. Patel had filed Criminal Writ Petition No. 2478 of 2005 before the Hon'ble Bombay High Court seeking directions to complete the adjudication proceedings expeditiously. The Hon'ble Bombay High Court by order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts. There is neither any proposal concerning any past importation of diamonds in similar fashion, nor any of the appellants admitted the allegation which is again based on suspicion. The courier parcels are screened at various points, by Customs, Courier Company or the Carrier. Although, the Adjudicating Authority observed that Bhargav Patel made conflicting and contradictory statements, whoever, there is no dispute on the fact that the parcel from which the diamonds under seizure were recovered was booked in the name of his sister Smt. Shilpaben without her knowledge, and was sent from Bangkok by Ms. Kanchana. Ms. Kanchana admitted in her Settlement Application that she could not even inform the Mr. Bhargav Patel or Mr. Nilesh B. Patel about having sent the parcel by courier which contained diamonds. The adjudicating authority has recorded that Ms. Kanchana appears to have been pressurized to file an affidavit giving untenable grounds such as non dutiability of the seized diamonds and conflicting reasons for sending concealed diamonds for collection by Jimmy who was not even known to Shri Bhargav Patel or his parents in India. We find that on the contrary she admitted her duty li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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