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TMI Blog2016 (12) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 through the freight broker M/s. N Jasraj & Brothers. It was also found that Indian Sago seeds and Indian Roasted Fennel Seeds were said to have been exported in these containers to Dubai and Doha per S.S. Lakatoi Express vide Shipping Bills No. 011916, 011917, 011918 and 011919 all dated 25.09.1985. All these Shipping Bills were found filed in the name of M/s. Arunchandra & Co on 'Self basis. On verification of the duplicate copies of the said shipping bills, it was confirmed that the Custom's examination report's recorded on the duplicate copies of the Shipping Bills were bogus and the signatures of the Custom's Officers too' were forged. During investigations, the premises of M/s. Jasraj and Brothers and documents relating to the aforesaid shipments as well as of other containers booked by Shri. Nitin Shah were taken over by the DRI. Shri Bhupatrai Jasraj, partner M/s. Jasraj & Brothers in his statement, interalia stated that Shri Nitin Shah had approached them as a representative of M/s. Kashmira Internati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the one declared in the inoivces Nos. 357 to 359 all dated 1/10/1985. The residential address of Shri. Nitin Shah at 2/1 Balchandra Road, Matunga was found non-existent. Shri. Nitin Shah was tentatively identified as Shri. Nitin Khimji Bhanushali, a clerk working with M/s. E G Phadnis & Sons, Clearing Agents (CHA No. 11/421), having residential address at 306/B, Sahyadri, building 3rd Floor New Maneklal Estate, Ghatkopar(West), Bombay. 5. A search of the residential premises of Shri. Nitin K Bhanushali by the DRI not only led to recovery of incriminating documents such as blank letter heads of the subject export firms but also Indian Currency of Rs. 4,30,850/- which were disclosed to be a part of Rs. 7 Lacs received by Nitin Bhanushali, as commission for his active co-operation in arranging the illegal export of the banned / restricted goods of a total declared FOB value of Rs. 1.5 crores (approx.) in the names of aforesaid 12 nonexistent firms. The market value of the exported goods in Dubai Market was to the tune of Rs. 2.18 crores, Shri Nitin K. Bhanushali in his statements recorded under Section 108 of the Customs Act. 1962 interalia admitted that he was individually working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shali and Shri. Haresh D. Gandhi were held liable to penalty under Section 114 of the Customs Act, 1962 and accordingly penalties of Rs. 35,00,000/- and Rs. 15,00,000/- were imposed on them respectively. Shri. Haresh D. Gandhi being aggrieved by the above order appealed to the CEGAT on the ground that principle of natural justice has been violated as the adjudicating authority has not allowed the cross examination of the officers of DRI who had recorded the statement of Shri. Haresh D Gandhi on three days namely 3,5,6th July, 1987 and cross examination of Shri. N.K. Bhanushali. The CEGAT vide its order No. 1292/92 WRB dated 23/7/1992 remanded the matter to Adjudicating authority with the direction that cross-examination of officers who have recorded the statement of the appellant might have recorded, cross-examination of Shri. N.K. Bhanushali was also called for. Following the direction given by the CEGAT order dated 23/7/1992 , the Commissioner of Customs(Adjudication), 3rd Floor, New Custom House, Mumbai passed the impugned order by which he held that Shri. Haresh D. Gandhi is liable to penalty of Rs. 15 lacs under Section 114 of the Customs Act, 1962. Aggrieved by the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that commission of Rs. 7 lacs was received by Deepak through one Mohammad and not by the appellant. As regard the certain documents recovered from Shri. Nitin K Bhanushali with reference to Visa application and passport of Shri. Nitin K Bhanushali reflecting code VISHU IN which belong to the appellant. The telex is related to Visa application of Shri. Nitin K Bhanushali and said documents are not related to alleged exports of contraband goods. He further submits that the statements of Shri. Nitin K Bhanushali was recorded prior to the statement of the appellant however no attempt was made to reconcile the statements or confront the appellant with the statement of Shri. Nitin K Bhanushali. No investigation with supplier of the illegal merchandise goods exported was conducted even though the quantities were huge. He submits that the department has heavily relied upon the statement of Shri. Nitin K Bhanushali to hold that Deepak and the appellant are same however on comparison of the statement of Shri. Nitin K Bhanushali there are different version regarding Deepak and the appellant therefore it cannot be said that Deepak and appellant are one and the same person. He submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri. Nitin K Bhanushali is showing telex code of appellant as VISH IN. He submits that without accepting the retraction the retraction so made is only for one statement. In other statements the appellant has admitted illegal exports therefore retraction in respect of one statement will of no help of the appellant. He submits that the retraction made in connection with the criminal proceedings related to Hashish case which has no bearing in the present case as Revenues case can be established on preponderance, whereas criminal case required direct evidence. He submits that in the remand proceedings the Commissioner has following the direction of Tribunal provided the cross examination. The result of the cross examination does not reveal anything in favour of the appellant. He submits that as per the statements of the appellant coupled with the statement given by the Shri. Nitin K Bhanushali and various corroborative evidences it is established that the appellant is directly and actively involved in the export of contraband/ restricted goods, therefore the adjudicating authority has rightly imposed the penalty of Rs. 15 lacs under Section 114. In support of his submission, he placed r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same person. In this regard, I observed that it is Shri. Nitin K Bhanushali who was mislead regarding the identity of the appellant and subsequently he has admitted that Deepak and appellant is one and the same person and there is no dispute that appellant is partner of M/s. Gopikant brothers therefore I do not agree with appellant that how it was not established that Deepak and the appellant is one and the same person. Moreover, even if the Shri Nitin K. Bhanushali referring about one Shri Deepak, but in the statement, he admitted that all the exports of contraband goods were made in the said 12 fictitious firms by the Appellant only. Under any circumstances, since Shri. Nitin K Bhanushali has clearly stated that the entire exports were done by the appellant further identity need not be established. As regard the judgment relied upon by the appellant on the Hon'ble Apex Court in the case of Noor Aga(supra), as I discussed above that retraction is not acceptable and the statements recorded are admissible evidences, therefore ratio of the judgment is not applicable to the facts of the present case. I also observed that Ld. Commissioner in the denovo adjudication process comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , clothes, spices etc during the year 1985-86 and all these consignments were exported in the name of his firm M/s. Gopikant Bros. Kanthawal 358/360, Narsi Natha Street Bombay 9, except certain consignments which were exported to some of his buyers by Mr. Nitin Bhanushali, he had never exported any goods in the name of the any other firm other than M/s. Gopikant Bros. Kanthawala except that Mr. Nitin Bhanushali had exported some consignments to his buyers as per his introductions of Shri. Nitin Bhanushali to the buyers when Mr. Nitin Khimji Bhanushali had told him that he would be exporting licensable items to them. Since the statement is not alleged as taken under coercion, the facts connecting the contraband and Shri. Nitin with Shri. Haresh D. Gandhi are relevant evidences. 22. The department further stated that retraction statement of Shri. Haresh D. Gandhi is general in nature and merely an afterthought. Since the different facts detailed by him in his statement are not retracted specifically, then bland allegations that the statement were obtained forcefully are not valid. Further in his statement dated 24.7.87, he has accepted his role and that of Shri. Nitin and this admi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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