9911796707
TMI Blog2015 (11) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... id items are imported duty free and are expected to be used in the manufacture of the export goods. Case of the Revenue is that the said unit clandestinely diverted a large quantity of diamonds, gold etc. in the domestic market instead of exporting. Further, a large quantity of diamonds clandestinely diverted were sold to the present appellant. Such sale was in contravention of the provisions of Notification 177/94-Cus. as also the EXIM Policy. Since the appellant has purchased from M/s. Neelkamal Jewellery Exports Ltd. and thereafter sold such diamonds in the domestic market, penalty has been imposed under Section 112(a) of the Customs Act. 3. The case of the Revenue started with an information and thereafter stock taking in the unit of Neelkamal Jewellery Exports Ltd. on 5th November 1999. There was acute shortage of the diamonds of various varieties physically available compared to the stock position indicated in the records of the said company. Statements of various persons starting from one Shri Bhupendra Kapadia, Director of the said company, were recorded who admitted that due to some financial difficulties, he has clandestinely cleared and sold the diamonds and other jewel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts office in Opera House. These diamonds were being handed over to the present appellant and the present appellant either himself or through his Accountant Shri Prem Atmaram Mayekar, was handing over the cash to them which in turn was given to Shri Bhupendra Kapadia. In the investigation, it is seen that number of statements of the present appellant were recorded. The present appellant perhaps being aware of the fact that the diamonds have been clandestinely removed from SEEPZ which is not permitted under the law, gave evasive reply to most of the questions so as to project that he has done nothing and there have been no transactions except one transaction between him and Shri Bhupendra Kapadia / Neelkamal Jewellery Exports Pvt. Ltd. On the other hand, Shri Balasaheb Sutar, Shri Ramdas Yadav who were working with Neelkamal Jewellery Exports Pvt. Ltd. in SEEPZ as also Shri Prem Atmaram Mayekar who was working in the appellants office admitted certain things which obviously implied that the diamonds were being clandestinely removed from SEEPZ were being sold to the present appellant and the present appellant in turn was paying for the same to Shri Bhupendra Kapadia. The investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not able to make his submissions. Another contention of the learned counsel was that the statement of Shri Bhupendra Kapadia cannot be relied upon as there are variations in his statements and he has been changing the stand in different statements. Another contention of the learned counsel was that the appellant in none of his statements has accepted that he has purchased the clandestinely removed diamonds. His submission was there has been only one transaction of diamonds with Shri Bhupendra Kapadia and that transaction was also was not from his SEEPZ unit but from one of his another set up in Hiranandani Gardens. It was also submitted that in the said transactions, the diamonds were exported and the amounts were paid through cheque to Shri Bhupendra Kapadia. Learned counsels submission is that even though the present appellant knew Shri Bhupendra Kapadia for large number of years, there was no transaction with him. It was his submission that Shri Bhupendra Kapadia used to come to their office or his persons used to come to their office and they were dealing with some other brokers and in the process, the appellant was helping him as the office was located in Prasad Chambers in Op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n what basis she has claimed that these diamonds have gone to the present appellant, but nothing of this sort was done. This itself proves that whatever Ms. Bengali has stated in heir statement was true and correct. The learned AR further submitted that the present appellant is well aware of the implications of what he had done and it is for this reason that in all his statements he has been vague and not coming to the point or was negative in replies. However, when a confrontational panchnama was drawn calling Shri Prem Atmaram Mayekar who was working in his own office, as also Shri Balasaheb Sutar and Shri Ramdas Yadav who were bringing the diamonds and handing over to the appellant and also collecting the cash, the appellant admitted the transactions. This admission itself proves that the appellant has been purchasing regularly the clandestinely cleared diamonds from the SEEPZ. The said panchnama or the statements have not been retracted or questioned and, therefore, these have to be relied upon. The learned AR also submitted that the so called as variation in the statement of Shri Bhupendra Kapadia are of no consequence whatsoever as far as the present appellant is concerned. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by Ms. Bengali after taking computer printouts during heir statement on 12.11.1999. I also note that the impugned order details the effort made by the department to locate these printouts. However, the Revenue has not been able to locate these 18 printouts from the records available with them. Since these 18 printouts are not available, one has to decide the case based upon what is available. I also note that these documents are not fatal to the case. First of all, these documents relate to clandestine clearance of diamonds from August 1999 onwards. It is not the Revenues case that the clandestine clearance of the diamonds and purchase of the same by the present appellant started only in August 1999. In fact, Ms. Bengalis statement speaks of approximately two years period. Thus the clandestine clearance and purchase of the diamonds was happening even before August 1999 and Ms. Bengali in her statement has indicated how this was being done and the fact that the diamonds would be taken out from the safe, weighed and thereafter the details of the diamond, weighment etc. will be communicated to the present appellant on fax and the diamonds will be handed over to Shri Bhupendra K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utar and also confirmed about the transactions number of times. Since the appellant himself has confirmed through statement and panchnama the wrong doings and the said panchnama or the statements have not been retracted in any reasonable time or on any reasonable basis, these have to be taken as true and correct. It is well settled law that whatever has been admitted need not be proved. From the various evidences which have been discussed in detail by the adjudicating authority in para 3.11, I have absolutely no doubt whatsoever in my mind that the appellant was actively involved in almost throughout two years and a very substantial quantity of diamonds which have been clandestinely cleared by the unit located in SEEPZ were purchased by him. He was aware of the fact that these diamonds have been imported by a SEEPZ unit and as per the law vide Notification No.177/94-Cus. as also EXIM Policy, these are not permitted to be sold in the domestic market and if sold in violation of the Notification and the provisions of EXIM Policy which would make such goods liable to confiscation and hence penalty on the appellant besides the main importer. Under the circumstances, I do not find any re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
