TMI Blog2015 (11) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... of the export, consignee etc. 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 reason to interfere with the impugned order. I also find that the then value of the diamonds covered by the 18 printouts itself is more than ₹ 7 crores. Similar purchase of clandestinely cleared diamonds was being done by the present appellant even for the earlier period for which the quantity and value details could not be found out in the investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sold the diamonds and other jewellery articles in the domestic market. He also took name of certain persons to whom he has sold such diamonds. The present appellant appears in such names. Number of statements of Shri Bhupendra Kapadia were recorded as the investigation progressed. There were some variations in his statement. However, as far as the present appellant is concerned, his name appeared consistently in all the statements. Statements of large number of officials working in the said unit were recorded as also that of the present appellant and one Shri Prem Atmaram Mayekar who was working in the office of the present appellant, was also recorded. Statements of one Miss Pearl Bengali who was working as secretary to the director, Shri Bhupendra Kapadia, were also recorded on 11.11.1999 and 12.11.1999. In her statement, she informed that on number of occasions Shri Bhupendra Kapadia asked her to take out diamonds of particular varieties in particular quantity. She took out those diamonds weighed and thereafter she was asked to fax the details to the present appellant at his office fax number. The fax number was also detailed by Miss Bengali and is not under dispute that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Bhupendra Kapadia. The investigator thereafter carried a confrontational panchnama wherein the present appellant was called. In addition, Shri Prem Atmaram Mayekar, Shri Balasaheb Sutar and Shri Ramdas Yadav were also called. During the confrontational panchnama, the present appellant admitted that he had received the diamonds from Shri Balasaheb Sutar/Shri Ramdas Yadav and paid in cash to them either himself or through Shri Prem Atmaram Mayekar. Such transactions were not done on one occasion but on number of occasions. Statement of the present appellant and also other persons were also recorded on the day of confrontational panchnama wherein the position was confirmed by the said persons. In addition to the above mentioned statements, there were statements of number of other persons, which are not so much relevant for the present appeal and are therefore not being discussed. Based upon investigation, show cause notices were issued to Neelkamal Jewellery Exports Pvt. Ltd., Shri Bhupendra Kapadia, the present appellant and other persons. The case was adjudicated. Aggrieved by the said order, the present appellant along with another appellant Shri Bhutnath Das filed appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice was located in Prasad Chambers in Opera House which is the centre for diamond trading. The learned counsels submission was that in the facts and circumstances of the case, particularly the fact that the appellant has not admitted and Shri Bhupendra Kapadias statement cannot be relied upon and also the fact that those 18 documents could not be produced by the Revenue, there is no case whatsoever for imposition of penalty under Section 112(a) of the Customs Act. 5. Learned AR, on the other hand, submitted that the appellant was provided copies of all the statements relied upon as also copies of panchnama and all other documents. He further submitted that the so called as 18 printouts were not listed in the relied upon documents and even then the Revenue tried to locate and made efforts to find out the said 18 documents. However, these were not available in the records in spite of the efforts made by the department and, therefore, the case is required to be decided based upon the available records and the fact that these 18 documents are not relied upon in the show cause notice. He also submitted that other than these 18 documents, there is no grievance whatsoever of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the present appellant is concerned. It is normal that the people who are aware of the consequences of the manipulation carried out by them that they do not admit or tell the truth in one go and at times tried to be vague or give vague answers and it is only as the investigation progresses that the true facts come to light. The learned AR took us through the findings of the Commissioner in the impugned order, particularly para 3.11 to support the Revenues case. He also took us through the large number of case laws quoted by the learned Commissioner, about the reliability relating to the statements, cross-examination etc. 6. I have carefully gone through the records, particularly the various statements as also other details including the submissions made by the leaned counsel for the appellant as also of the learned AR. The learned counsel has submitted that the statements of Shri Bhupendra Kapadia of Neelkamal Jewellery Exports Ltd. cannot be relied upon as there are lot of contradictions between different statements, while in the initial statement he has been taking the name of 3-4 persons and later on he has changed his stand. I have gone through these statements very care ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amonds will be handed over to Shri Bhupendra Kapadia who would take further action to ensure that these are clandestinely taken out of the SEEPZ area and thereafter transported to the present appellants office. In my view, it is very important to note that these 18 printouts for whatever worth these may be, were shown to the present appellant while recording his statement and even that time he gave vague answer to that and simply stated that these printouts indicate the detail of the export, consignee etc. During the statement, he did not say that he never received the consignments covered by these 18 documents nor said that he received the diamonds covered by these documents. Ms. Bengali was very specific along with the dates that the diamonds were weighed and the details were faxed to the present appellant and the diamonds were handed over to Shri Bhupendra Kapadia who in turn had sent to him and the diamonds were not exported. It is very strange that Ms. Bengali was present for cross-examination but the appellant did not cross-examine her. She could have been cross-examined even in the absence of those 18 documents or they could have asked questions about those 18 documents. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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