TMI Blog2021 (7) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... uced - appeal allowed in part. - Customs Appeal No.12103-12104 of 2018 - A/12289-12290/2021 - Dated:- 29-7-2021 - MR. RAMESH NAIR, MEMBER (JUDICIAL) Shri. P P Jadeja, Advocate for the Appellant Shri Sanjiv Kinker, Superintendent (AR) for the Respondent ORDER Shri Jorabhai Valabhai Rabari @ Desai and Shri Premabhai Jethabhai Attya @ Patel (hereinafter referred to as 'the Appellants') have filed Appeals against the impugned O-I-O NO. AHM-CUSTM-OOO-COM-004-2018-19 dated 25-04-2018 issued by the Principal Commissioner of Customs, Ahmedabad wherein a Penalty u/s 112(b) of Customs Act 1962 of ₹ 17,01,313/-[each]is imposed on Appellants Shri Jorabhai and Shri Premabhai. 2. Brief facts of the case of Revenue are that the officers of DRI acting on a specific information, intercepted Appellants Shri Jorabhai and Shri Premabhai on 22.4.2011 at Surat and recovered 48637.525 carats of Rough Diamonds of Zimbabwe origin valued at ₹ 10,16,68,077/- (market value). There was no duty on Import of Rough Diamonds. However, import of Rough Diamonds were restricted and its import should be accompanied by Kimberley Process Certificate. The Kimb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as directed by Hon ble Tribunal. Such penalty deserves to be set aside or Re[1]quantified for reasonable, just and fair reduction on these 2 Appellants. He argued that such heavy penalty of ₹ 17,01,313/- imposed on individual Appellant is not commensurate with role in this case. He argued that there is no case for imposing penalty on Appellants, who have not smuggled rough diamonds and the same were not recovered from them. Appellants have no criminal background and except this case, they are not found involved in criminal activity including the case under Customs Act 1962. Appellants have not smuggled seized diamonds in India and they have no connection with confiscated diamonds and therefore penalty imposed upon Appellants is very harsh. Appellant has not challenged valuation of goods or claimed ownership or possession of the seized confiscated Rough Diamonds. The penalty imposed on Appellants deserves to be set aside or reduced leniently. He submitted that since Penalty was to be re-quantified on the basis of Role of the Appellants , he requested to look at the factual details of case from beginning of case i.e. from 22-04-2011. 4. Shri Sanjiv Kinker, Superintendent( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15(2) of the Act and imposition of redemption fine of ₹ 40,000, under Section 125 of the Act; 6. In CA-3 Appeal proceedings, Penalty on shri Narendra Raval in his Appeal has been set aside by Tribunal s Order No. A/10455/2016 dated 17.05.2016. However, Appeal Nos. C/10191/2013 and No. C/10192/2013 filed by these Appellants, matter was remanded by this Tribunal vide Order No. A/10497-10498/2016 dated 17-05-2016 upholding confiscation of diamonds with directions that subject Rough Diamonds should be valued by two experts, one chosen by the appellants and one by the Revenue from a panel of experts nominated by Gem and Jewellery Export Promotion Council and these experts should value the subject Rough Diamonds as per the value prevalent at the time of seizure of the subject rough diamonds. On the basis of the said value fixed by the experts, and the role of the appellants, the quantum of penalty should be re-quantified. Accordingly, seized Rough Diamonds were examined by appointed panel of Experts and seized diamonds were valued at ₹ 1,70,13,125/-by the said panel of experts. Then, by O-I-O NO. AHM-CUSTM-OOO-COM-004-2018-19 dated 25-04-2018 issued by Principal Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he had not seen recovery of Bag from Appellants and has stated that bag containing seized diamonds was lying in DRI office. Both Appellants have retracted from inculpatory statements on the first available opportunity on 23-04-2011 after their arrest and they have relied upon decision of the Hon ble Supreme Court in case of VINOD SOLANKI v/s UOI -2009 (233) E.L.T. 157 (S.C.),wherein the Apex Court has held that Evidence by confession, if retracted, must be corroborated by some other independent and the cogent evidences. Revenue s case is that Appellants had gone to Nairobi(Kenya) in 2011 and had smuggled diamonds in their personal baggage, cleared the same without declaring the same at Mumbai Airport in night of 12/13-04-2011 and they were also apprehended, while they had come to Surat on 22-04-2011. With reference to Arrival/departure stamps in Passports, Appellants contended that they had gone to Nairobi(Kenya) in March/April 2011 and had returned to India in night of 12/13-04-2011. But, it is not correct that they had smuggled the diamonds in baggage which were seized on 22-04-2011. There is nothing on record to corroborate that Appellants have smuggled seized rough diamonds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 9. It is also an important fact for consideration that COFEPOSA preventive detention Orders dated 17-10-2011 against these two Appellants were revoked by the Central Government, considering representation dated 25-04-2012. COFEPOSA revocation Orders placed on record by the Appellants shows that on the basis of representation dated 25-04-2012, submitted by Appellant Shri Jorabhai, Central Government was pleased to revoke COFEPOSA order No. 673/26/2011-Cus.VIII dated 17-10-2011 u/s 11 of COFEPOSA Act 1974 vide the Order issued from F.No. 686/301/2012.Cus.VIII on 27.06.2012 against Shri Jorabhai, even before execution of COFEPOSA detention Order. Central Government was pleased to revoke COFEPOSA order No. 673/25/2011-Cus.VIII dated 17-10-2011, which was confirmed u/s 8(f) for one year from 12-11-2011 u/s 11 of COFEPOSA Act 1974 vide Order from Government s F.No. 686/25/2011.Cus.VIII on 27.06.2012 against the Appellant Shri Premabhai. 10. I also find force in arguments of Appellants that this is a town seizure case and the diamonds in question were not seized at the point of Entry in India. It is argued that Section 123 of Customs Act 1962 are not made applicable in cases of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty under Section 112(b) of Customs Act 1962. The DRI investigation has not brought any such evidence except retracted confessional statements to show that Appellants have smuggled rough diamonds into India in the night of 12/13-04-2011. In these circumstances, imposition of penalty on the appellants under Section 112(b) is not fully justified. Further looking at the involvement it is felt that penalties imposed on these Appellants is excessive and it is reduced to ₹ 1,00,000/- (Rupees one lakh) each. Thus, in peculiar facts and circumstances of this case including this Tribunal s order dt. 17-05-2016, which has upheld the impugned O-I-O No. 18/Commr/DRI/2012 dated 31.10.2012, except for quantum of penalty on appellants and since the goods have been absolutely confiscated, I feel that there is no need to impose very heavy penalty upon the appellants under Section 112(b) of Customs Act, 1962, which is reduced to amounts of ₹ 1,00,000/- upon each Appellant in order to meet the ends of justice and the remaining penalty imposed on the Appellants Shri Jorabhai and Shri Premabhai is set aside in the interest of justice, though Appellants are pleading to drop the entire pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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