TMI Blog2003 (10) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... mmercial value. In the light of the investigation, a show cause notice was issued to the petitioner and others. Reply was obtained from the petitioner. Thereafter, the Collector of Customs has chosen to pass an order on 16-1-1995. The Collector in the order has chosen to confirm the confiscation of 50 cartons along with the contents containing building bricks covered with newspaper and coir. He has also chosen to impose penalty on the petitioner. The petitioner was imposed a penalty of Rs. 1 lakh in the order. Aggrieved by the same, the petitioner filed an appeal before the CEGAT, Madras. The Appellate Tribunal, by a detailed order has chosen to confirm the order. The petitioner is therefore before me. 2.Respondents have entered appearance and they justify their action. They further say that the petitioner sought for time to deposit penalty amount before the CEGAT and time was granted. No amount is deposited. 3.W.P. No. 22592/2000 is a petition filed by Shri S.D. Kini challenging the very order that is challenged in the earlier Writ Petition. The petitioner in this petition was also issued with a show cause notice in identical circumstances. Reply was obtained and thereafter, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pendency. On appeal, the Tribunal has noticed various admissions and facts and thereafter the Tribunal has chosen to confirm the said penalty order. According to the learned Counsel, both the orders are based on facts and require confirmation by this Court to arrest such acts. 9.Insofar as Sec. 114 is concerned, the learned Counsel says that an interpretation as suggested by the learned Counsel cannot be accepted. The 'Duty' as referred to in the Section is to the original material and not to a defrauded material. In conclusion, he wants the order to be confirmed by me. 10.After hearing the learned Counsel, I have carefully perused the material on record. 11.This case revolves around the penalty imposed by the respondent. Admitted facts reveal that DRI received information with regard to export of some goods by ship MV EL NIEL from New Mangalore Port. Their further information is that goods were not in conformity with the declaration made in the four shipping bills. They board at the vessel and they obtained 4 mate receipts, dated 30-1-1994 in respect of export of 50 cartons of 80 Denier Polyester texturised yarn by M/s. Sheth International, Bombay to Al-Mataiwie General T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Kini is concerned, the authority notices the statement of Shri Kini. He notices that he arranged for the building bricks and packed them in the cartons in his residence. He contacted Shri Pushparaj Shetty for arranging shipment for illegal export as per the bills struck by the partner Shenoy. His admission is that he received Rs. 75,000/- for the services rendered by him to carry out this illegal export. He is also aware of the plan of making export on behalf of M/s. Seth International. He admitted that he packed 50 cartons with bricks covered with newspaper and coir. His statement is supported by Shri Pushparaj Shetty, Shri Krishnanand Shetty and Shri Shenoy. 14.Here again, the authority notices the findings against Shri Kini on facts. When the same was challenged, the Tribunal noticing the role played by Shri Kini has confirmed the fact finding of the authority. Here again I do not find any contra material to dislodge this fact finding order of the two authorities. 15.Insofar as Shri P.M. Nayak is concerned, it is seen from the material on record that Shri Nayak agreed and advised Shri M.L. Seth on the export without actual goods to be done through New Mangalore Port with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese appellants guilty of the offences is required to be accepted." 20.These findings, in my view, cannot be disturbed in a Writ Petition. Writ Petition is not a Court of appeal sitting in judgment over all factual findings. Two authorities have given their factual findings based on several admissions and several incidents. They cannot be upset by a Writ Court unless a very strong perverse case is made out in accordance with law. No such attempt is made. 21.Having come to this conclusion let me see as to whether penalty is excessive as argued by the learned Counsel. In the case on hand, penalty levied ranges from Rs. 1 lakh to 3 lakhs. A fraud is played on the State by way of sending bricks with coir and newspapers as against the texturised goods. The value of texturised goods is $ 72,580 and as against this huge value of goods and papers worth of Rs. 250/- sent to Dubai. A clear cut plan has been hatched and but for the hard work put forth, by DRI probably this would have gone unnoticed. The DRI in the given case has really done a good job in discovering a well laid plan of fraud by the petitioners. In the given set of circumstances and on the facts of this case, I do not thin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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