TMI Blog2016 (12) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... - Order No.A/88616/16/SMB - Dated:- 18-7-2016 - Mr Ramesh Nair, Member (Judicial) Shri. Yashpal Jain Advocate with Khalil Khirmani Advocate and Ms. Taruna Jaiswal, Advocate for the Appellants Shri. D.S. Maan, Asstt. Commissioner(A.R.) for the Respondent Order This appeal is directed against Order-in-Original No. 14/2005/CAC/CC/RJM dated 24/3/2005 passed by the Commissioner of Customs(Adj)., New Custom House, Mumbai, wherein penalty of ₹ 15 Lacs was imposed on the appellant under Section 114 of the Customs Act, 1962. 2. The fact of the case is that pursuant to intelligence that a shipper, M/s. Arunchandra Co had exported 3 consignments said to contain Indian Roasted Fennel Seeds to Dubai in containers No MERU-757710-0, MERU-744527-4 and UNFU-000049-6 in the month of October, 1985 and that the goods packed therein were actually prohibited/restricted items like pulses and jiggery etc. and that certain persons were regularly shipping even the contraband goods. In the inquiry by DRI officer it was found that the said 3 containers were part of a total of 18 containers booked by one Shri Nitin Shah of 2/1, Balachandra Road, Near Poddar College, Matunga thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 containers and for 2 containers the freight was paid in cash at Bombay. 4. Detailed enquiries were thereafter made regarding the exports effected in the name of various shippers by the said Nitin Shah who booked the container and 29 shipping bills together with connected documents were obtained from the Custom House. The enquiries at Dubai had revealed that the containers Nos. MERU-757710-0, MERU-74527-4 and UNF U 000049-6 covered by the shipping bills nos. 011916, 011918 and 011919 on arrival at Dubai were cleared by M/s. Merzario Shipping Agency through their local agents M/s. Modern Freight Co. Dubai and that the goods of the said 3 containers were declared in the import documents filed with the Customs Authorities at Dubai as Indian R.F. Seeds shipped from Bombay by M/s. Arunchandra Co. to M/s. Ahmed Hussain Guber Est. However, the accompanied documents i.e. invoices described the goods as Tuwar Dal Plain. Tuwar Dal Oily Jaggery and Massor Dal. Apparently, the description of the goods exported from India shown in the relative export documents was found other than the one declared in the inoivces Nos. 357 to 359 all dated 1/10/1985. The residential address of Shri. Nitin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal exports were made were found to be the regular buyers of his firm M/s. Gopikant Brothers. A telex from one of the foreign consignee addressed to Shri. Nitin K Bhanushali regarding visa and passport and seized from his residence, also found to bear the code VISH IN which was code of the telex Machine of Shri Haresh D. Gandhi. 7. As the investigations in the subject exports were in progress both Shri. Haresh D. Gandhi and Shri. Nitin K Bhanushali were found to be involved in the illegal export of Hashish worth ₹ 29 crores in the name of M/s. Murugan Enterprises, Bombay one of 12 non existent firms referred above. As show cause notice in respect of the seize of ₹ 4,30,850/- was issued on 4/7/1986 and a detailed show cause notice in respect of the illegal exports invoking Section 114 of the Customs Act, 1962 were also issued on 18/3/1989. The case was adjudicated vide Order-in-Original No. DRI/BZU/122/2/86 dated 14/2/1991. The amount of ₹ 4,30,950/- seized from the premises of N.K. Bhanushali was ordered to be confiscated under Section 121 of the Customs Act, 1962. Shri. Nitin K Bhanushali and Shri. Haresh D. Gandhi were held liable to penalty under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not prove Deepak and the appellant is one and the same person. It was also relied upon that bank draft of ₹ 1 lac was made by Gopikant Brothers for payment to the freight brokers namely M/s. Jasraj Brothers, however in the show cause notice itself it was stated that one K.P. Mehta had applied for draft of ₹ 1 lac but in the same show cause notice it was also mentioned that managing partner of the firm Gopikant Brothers also applied for the same draft of ₹ 1 lac, this is apparent inconsistency therefore the said evidence cannot be relied upon. Relaiance was placed on the recovery of amount of ₹ 4,30,850/- from the premises of Shri. Nitin K Bhanushali and amount of ₹ 2,50,000/- bears stamp of the paper label affixed on them as Union Bank of India, Madvi Branch where the appellants firm also had an account. In this regard, he submits that simply because stamp of Union Bank of India is affixed on the currency recovered from premises of Shri. Nitin K Bhanushali, by any stretch of imagination it cannot be inferred that appellant was involved in the illegal export of contraband goods. Moreover, Shri. Nitin K Bhanushali stated that commission of ₹ 7 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orically admitted the involvement of illegal exports of contraband goods. The appellant have not retracted the statement before the DRI therefore merely because the retraction was made but not submitted to DRI should not be given any credence. Moreover there are ample corroborative evidences on the basis of which the statements cannot be discarded and retraction does not serve any purpose. He submits that all the twelve firms shown as exporters were found bogus. As per shipping line Shri. Nitin K Bhanushali is in the forefront in the transaction of illegal exports but actual persons involved in the exports is the appellant, this has been established on the basis of the statements given by Shri. Nitin K Bhanushali. On raid to Shri. Nitin K Bhanushali by investigation team some documents and cash of ₹ 4,30,850/- was recovered which also supports the charge of illegal export. As regard the retraction there is no specific retraction as regard the specific part of the statement therefore general retraction shows that it is after thought. He submits that Shri. Nitin K Bhanushali was closely associated with the appellant on the evidence that the correspondence made by Shri. Nitin K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal proceedings in the Court of Magistrate, at that time, the DRI officer was present in the Court therefore officers were aware about the retraction. I do not find any force in this submission of the appellant that merely because officers were present they have taken the retraction on record. In my view retraction should have been made before the DRI officers independently and separately and it should be specific in relation to the question asked in the statement and answers given there for. No such retraction was made before the DRI officers. Moreover it is not only appellants statement alone but there are various corroborative evidences such as categorical statement of Shri. Nitin K Bhanushali who clearly stated that appellant is the main person who was involved in the exports of contraband/ restricted goods. The said evidences such as recovery of cash, demand draft made in the bank for payment of freight to the shipping line indicates that in all these evidences the appellant is connected. The appellant has harped on the point that Shri. Nitin K Bhanushali has been referring the person Deepak in all his statements, revenue could not establish that the Deepak and the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Deepak only. Since Deepak and Haresh Gandhi are the same person it implies implication of Shri. Haresh D. Gandhi by Shri. Nitin Bhanushali. The department further argued their case is also based on the documentary evidences such as telex messaes showing correspondences relating to export of these goods were recovered from the office premises of Shri. Haresh D. Gandhi and ₹ 2 lakhs draft payment was made to the Steamer Agents from the account of Shri. Haresh D. Gandhis firm against the payment of freight in respect of these goods . The department further argued that the parties to whom the contraband goods were exported against the Shipping Bills in question, were the customers of Shri. Haresh D. Gandhi. He has himself confessed that he had introduced M/s. Al Murrey Gandhi Trading C. to Shri. Nitin Bhanushali for commission of 10% of the C F value of exports. The department further stated that after release on bail in his statement dated 24.7.87 Shri. Gandhi voluntarly stated that the consignees shown on the reverse of the summon international United wares Co. Ltd. Montreal, Canada. The department further argued that he had exported approx. 100 consignments of items like f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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