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Commissioner of Customs, (Import) , Chennai Versus Smt. Louis Premalatha, M/s. Fast Forward, M/s. Caravel Shipping Services Pvt. Ltd., Thameem Shipping Services And Shri Thameem Ansari

2015 (12) TMI 1093 - CESTAT CHENNAI

Smuggling of goods - export of the smuggled zirconia into India from Malaysia by a premeditated design - Confiscation of goods - undeclared goods - Held that:- It is surprising that show cause notice does not reveal any incriminating evidence against M/s. Carvel Shipping Services Pvt. Ltd. Therefore, in absence of justifiable ground by Revenue in its appeal, it is very difficult at this stage to implead M/s. Carvel Shipping Services Pvt. Ltd. as respondent. Therefore, Revenue s appeal against M/ .....

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ing prejudice to the interest of customs without bringing the members of smuggling racket to the fold of law. When the investigating authority as well as adjudicating authority failed in their duty to bring necessary parties to the fold of law, it is not possible at appellate stage to implead them and press them to undergo trial. M/s. Caravel Shipping Services Pte. Ltd. was neither issued show cause notice nor was adjudicated. There appears lapse on the part of adjudicating authority to keep thi .....

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ation to this country when the racket and mastermind behind that remained in mystery and unidentified. Facts and circumstances of the cases suggest that there was premeditated design to cause subterfuge to Revenue. It is high time to arrest smuggling, without encouraging that to perpetuate. - Decided against Revenue. - Appeal Nos. C/110, 111, 112/2009 & Appeal Nos. C/113, 114, 115/2009 - Final Order Nos. 41472-41477 / 2015 - Dated:- 30-9-2015 - Shri D.N. Panda, Judicial Member For the Petitioner .....

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. Thameem Shipping Services 3. 8585/2009 dated 18.2.2009 C/115/2009 Shri Thameem Ansari 4. 8615/2009 dated 25.2.2009 C/110/2009 Smt. Louis Premalatha 5. 8615/2009 dated 25.2.2009 C/111/2009 M/s.Fast Forward 6. 8615/2009 dated 25.2.2009 C/112/2009 M/s. Caravel Shipping Services Pte. Ltd. 2.1 Two containers viz., TTNU 3803555 (which was subject matter of investigation made on 16.6.2008 and adjudicated vide order No. 8585/2009 dated 18.2.2009) and Container No. TTNU 2633834 (which was subject matte .....

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g in Malaysia to a consignee named Khader Nainar Jummak Khan of No. 11, Keela Pallivasal Street, Illayankudi PO and Taluk, Sivaganga Dist. - 630702 and the goods in container No. TTNU 2633834 was consigned by one Fakir Mohamed from the same port to the consignee Arunachalam Muthukrishnan of No. 3/58, Melappatu PO, Aranthangi, Melappatu Taluk, Pudukottai Dist. - 674616. 3.1 When physical inventory of the container No. TTNU 3803555 was taken as against 148 packages of house hold goods declared, 26 .....

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nfiscated not being declared. 3.2 The consignee Khader Nainar Jummak Khan claimed his personal effects pleading his innocence about undeclared goods. His personal effects were not seized but handed over to him. Investigation found that one Zahir Hussain from Malaysia who was stated to be friend of the consignee had consigned the declared as well as the undeclared excess baggages to India. According to adjudicating authority the statement recorded from the consignee revealed that he was not at al .....

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pt out of adjudication. 3.4 Investigation examined Shri Riyas the representative of the consignee Khader Nainar Jummak Khan and no incriminating material against the consignee was found. 3.5 When one K. Thameem Ansari, CHA (in Appeal No. C/115/2009) was examined, he revealed the same story as that was revealed by the consignee of goods Khader Nainar Jummak Khan. He stated that he was given to understand that his 148 packages have come in that container which are to be cleared to customs. Service .....

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round, the Order-in-Original No. 8585/2009 dated 18.2.2009 was passed and adjudication resulted in confiscation of cubic zirconium stones and seizure of the consumer goods as well as biscuit tins. There was no proceeding at all initiated against M/s. Caravel Shipping Services Pvt. Ltd. in the adjudication nor show cause notice was issued to that concern. Therefore, Revenue s grievance is that M/s. Caravel Shipping Services Pvt. Ltd. should be impleaded in the appeal as Respondent although there .....

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nvestigation found that there were 358 packages in the container and two packages were biscuit tins concealing 725 packets containing 3,42,100 cubic zirconium valued at ₹ 1,54,76,000/- by the Jewellery Appraiser of Customs. This racket operated in similar manner which was involved in adjudication order No. 8585/2009 dated 18.2.2009. 4.2 The story revealed by the passenger consignee above was that one Fakir Mohamed being his friend in Malaysia was asked by him to send back his (consignees) .....

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.2009. Its further grievance is that the freight forwarder, the CHA Thameem Ansari (involved in Order-in-Original No. 8585/2009) brought out his acquaintance with Khader Nainar Jummak Khan. But he only revealed that he was concerned with the clearance of 148 packages of Khader Nainar Jummak Khan and nothing more could be revealed from his statement. Investigation should have probed the matter extensively. Revenues further grievance is that Thameen Ansari, CHA was a necessary party to the procee .....

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, neither show cause notice was issued to that concern nor that concern was made a party to adjudication proceeding for penal action. 5.3 So far as the appeals of Revenue against M/s. Fast Forward CHA and Smt. R. Louis Premalatha representative of that concern is concerned, Revenue submitted that when Smt. Premalatha, CHA firm M/s. Fast Forward was examined on 1.7.2008 she pleaded innocence. Investigation could not bring out any material against CHA about the consignment of cubic zericonia in co .....

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Revenue. 7.1 Heard both sides and found that the adjudicating authority was also show cause notice issuing authority. He has exonerated all the respondents from penal consequence of law finding no complicity of them with the smuggling racket. 7.2 Revenue not only failed to produce investigation record today, but also failed to produce the statements recorded from different persons under section 108 of Customs Act, 1962 for scrutiny. 7.3 It is surprising that even reading of para 8 of the show c .....

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ysia by a premeditated design. 7.4 It is certainly a truth that there was a smuggling racket operated to bring cubic zirconium into India. It is also shocking to note that there was a total failure of investigation to conduct proper investigation in India and overseas. Spirit and intent of section 11 of the Customs Act, 1962 was burried causing prejudice to the interest of customs without bringing the members of smuggling racket to the fold of law. When the investigating authority as well as adj .....

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