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TMI Blog2021 (7) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rough Diamonds. However, import of Rough Diamonds were restricted and its import should be accompanied by Kimberley Process Certificate. The Kimberley Process Certificate identifies a shipment of Rough Diamonds in compliance with requirements of the law. Since Appellants were not having KPCs, Rough Diamonds were seized by DRI officers. After investigation, SCN dated 10.10.2011 was issued proposing confiscation of the seized Rough Diamonds and proposing imposition of penalties u/s 112(b) of Customs Act 1962 on Appellants Jorabhai, Premabhai and others including shri Narendra Raval, owner-cum-supplier of seized Rough Diamonds. Vide O-I-O No. 18/COMMR/2012 dt. 02-11-2012 by Commissioner of Customs, Ahmedabad had ordered absolute confiscation of the seized Diamonds wt. 48,637.525 carats valued at Rs. 10,16,68,077/-, u/s 111(d), 111(l) and 111(m) of Customs Act, 1962 and had imposed Penalty of Rs. 1,00,00,000/- (each) on S/shri Jorabhai, Premabhai and Narendra Raval for offence in connection with diamonds seized on 22-04-2011. Aggrieved by penalty imposed, These appellants had filed Appeal Nos No. C/10191/2013 AND 10192/2013-DB, wherein as directed in Stay Order No. M/10979 & 19780/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k at the factual details of case from beginning of case i.e. from 22-04-2011. 4. Shri Sanjiv Kinker, Superintendent(AR), Authorized Representative, appearing on behalf of the Revenue reiterated findings of the adjudicating authority and has submitted that arguments by Appellants are untenable and accordingly their Appeals may be rejected. He has also filed written submission in order to object the Appeals filed by Appellants and has contended that since Tribunal's Order dt. 17-05-2016 has attained finality, it is not open for Appellants to argue on facts of case and against penalty. Statements of Appellant though retracted are valid and supported by other evidences referred to in Para 7 of Tribunal's order dated 17-05-2016 and entire penalty imposed on Appellants cannot be set aside. 5. Heard both the sides and perused records. I find that seized rough diamonds weighing 48,637.525 carats were valued at Rs. 10,16,68,077/- at the time of seizure on 22-04-2011. Inculpatory statements of Appellants were recorded on 22-04-2011, which were retracted on 23-04-2011, when Appellants were produced before judicial Magistrate after their arrest. SCN was issued on 10.10.2011 to Appellants Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -O NO. AHM-CUSTM-OOO-COM-004-2018-19 dated 25-04-2018 issued by Principal Commissioner of Customs, Ahmedabad seized Rough Diamonds totally valued at Rs. 1,70,13,125/-have been confiscated absolutely and also a Penalty of Rs. 17,01,313/- [each] is imposed on Shri Jorabhai and Shri Premabhai u/s 112(b) of Customs Act 1962. Hence, Appellants are before this Tribunal again. Re-determined value Rs. 1,70,13,125/-is not disputed by Appellants. Since no one has claimed the seized Rough Diamonds, order of "absolute confiscation" of Rough Diamonds has also undisputedly attained its finality. However, both these Appellants are contesting only penalty imposed on them u/s 112(b) of Customs Act 1962. Penalty u/s 112(a) under Customs Act 1962 is for any "act, omission or abetment" in improper import of goods and does not require mensrea, whereas penalty u/s 112(b) ibid operates for smuggled goods after its improper import and requires mensrea. 7. I find that this Tribunal had directed to re-quantify penalty, after considering "Role of the Appellants". Appellants argued that they have not smuggled diamonds in India, had it been so, penalty u/s 112(a) of Customs Act 1962 would have been imposed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to corroborate that Appellants have smuggled seized rough diamonds in personal baggage, except their statements, which are retracted on 23-04-2011 at first available opportunity after their interception and arrest. Authorized Representative of the revenue has argued with regard to para 7 of Tribunal's Order dated 17-05-2016 indicates other corroborative evidences. I note that the said para 7 refers to the Statements of Shri Chetan B. Shah, proprietor of Neel Gems, Shri Ajaybhai M. Khambadiya and Shri Dharnendra Rasiklal alias Monu, proprietor of M/s. Mili Gems. However, these statements do not show that these Appellants have smuggled rough diamonds in from Kenya to India. These statements merely show that Appellants were dealing in rough diamonds and had been moving in the market with some sample of diamonds for sale. These statements do not connect Appellants with seized diamonds in any other manner. There is no other independent corroborative evidence to show that seized diamonds were smuggled into India by the Appellants in their baggage, while returning to India from Kenya in the night of 12/13-04-2011. If DRI investigation was so sure about smuggling seized diamonds in baggage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs Act 1962 are not made applicable in cases of Rough Diamonds. Hence, it is obligatory for Revenue to prove that rough diamonds, seized & confiscated are smuggled into India by Appellants Shri Jorabhai and Shri Premabhai, whether claimed or not by these Appellants or any other persons. Except retracted statement of both Appellants, there is no other evidence to show that Appellants have smuggled said seized diamonds from Nairobi[Kenya] to India. Appellants have also submitted that there are no markings on such seized diamonds to show that they are of foreign origin and in absence of any Notification under Section 123 of Customs Act 1962, burden is on the revenue to prove that the seized diamonds are smuggled into India. Thus, the Revenue has not proved smuggling of diamonds into India by these Appellants. 11. In view of the above, I am of the view that it is difficult to conclude that these 2 Appellants have smuggled seized & confiscated rough diamonds into India. The benefit as given to Appellants while revoking COFEPOSA orders by Central Government and also to shri Narendra Raval who was allegedly Owner-Cum-Supplier of the seized diamonds in this very case for dropping ..... X X X X Extracts X X X X X X X X Extracts X X X X
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