TMI Blog2003 (6) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Manu Jagasia Rs. 1,00,000/- Shri Ajay Vora Rs. 1,50,000/- 2. All appeals arise out of a common adjudication order and are hence heard together and disposed of by this common order. 3. The brief facts of the case are that in pursuance of specific information that excess dutiable goods were going to be imported/smuggled by certain persons at Unaccompanied Baggage Centre, Indira Docks, Bombay Port in the name of Shri Fahad Al Dakheel, Vice Counsel of the Saudi Arabian Consulate at Bombay by misusing the concessions of Customs duty available to diplomats, the officers of the Head Quarter Intelligence Unit proceeded to U.B. Centre, Uncleared warehouse, Bombay on 26-6-95. Some inquiries conducted with regard to the said diplomatic baggage revealed that container No. SCZU 736994 containing the diplomatic baggage had been destuffed and the baggage form in the name of Shri Fahad Al Dakheel, Saudi Vice Consul had been filed and the packages consisting of four wooden crates and a cardboard carton after clearance, were on the verge of being delivered to the party. Thereafter these five packages were loaded on truck Nos. MTS 2036 and MHL 4328. These truck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h he had approached Shri Ajay Vora who told him that he possessed list of items to be brought through diplomatic cargo. The statement also brought out that one fridge and one 50" CTV purchased there were his goods i.e. goods of Shri Ashok Oza and the rest of the goods belonged to Manu Jagasia and Shri Ajay Vora. The statement also reveals that the wooden crate and cardboard carton which were loaded in the truck were examined on 27-6-95 in the presence of two panch witnesses, representative of Saudi Consulate Shri Sayed Ali Nazer and Mohd. Nasser, Dy. Secretary Protocol, Government of Maharashtra Shri R.S. Benjamin, his Protocol Assistant Shri Gurunath Sawant, CHA Shri Vinod Mistry, Shri Ashok Oza, Shri Ajay Vora and Manu Jagasia. The detailed examination of the said 5 packages resulted in recovery of dutiable goods of foreign origin valued at Rs. 11,33,660/- C.I.F. and Rs. 22,67,320/- LMV which were taken over and seized under the reasonable belief that they had been smuggled into India and hence liable to confiscation under the provisions of Customs Act along with the 2 trucks. The original BDP No. 3117 of 24-6-95 Appendix 1(B) No. 11/FS/2/95 of 2-5-95 along with a copy of invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid Import Trade (Control) Licence is prohibited in terms of Sections 3(2) and 4 of Foreign Trade (Development and Regulation) Act, 1992 and under Section 3(3) ibid the said prohibition or restriction is deemed to have been imposed under Section 11 of the Customs Act, 1962. 7. In the above circumstances, a show cause notice dated 21-12-95 under Section 124 of the Customs Act was issued to all the five appellants wherein all the aforestated facts were stated and it was alleged that the goods under seizure were liable to confiscation under Section 111(d) of the Customs Act and two trucks totally valued at Rs. 5 lakhs were liable to confiscation under Section 115 of the Customs Act. Penal action was proposed against Shri Ashok Oza, Shri Manu Jagasia, Shri Ajay Vora under Section 112(a) of the Customs Act and Shri Mohd. Nasser and Shri Parvez Irani under Section 112(b) of the Customs Act. 8. The Commissioner vide impugned order did not accept the various submissions of all the five appellants and has held that the goods declared in the BDF do not tally with the list of goods actually seized by the Customs and he was convinced that the goods under seizure were therefore, liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Customs of the Port at which the goods were imported at the rate of duty in force and on the basis of value at the time of importation of the goods. Therefore, when BDF declarations have been filed by these persons, which were duly signed by them, in case of violation of the Customs Act, it was mandatory for the Customs authorities to have recovered the duty from the said diplomats. However, they were neither summoned under Section 108 of the Customs Act nor were their statements recorded by the department. Further, they were not made parties to the show cause notice and adjudication proceedings. In case the Department was of the view that the facility available to diplomat was mis-used, such charge could never be proved without the participation of the diplomat in the adjudication proceedings. We have also gone through the correspondence between the Royal Consulate General of Saudi Arabia, Bombay and the Customs authorities and also the letter dated 25-6-95 by Zaveri Shipping Clearing Est. wherein they have categorically stated that the goods which they sent for Mr. Fahad Al Dakheel do not belong to him but they belong to other client to whom they have wrongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been a violation of the diplomatic facility, it was incumbent upon the department to have demanded duty from the actual importer which has not been done in the present case. Therefore, the violation of Section 111(d), (m) and (o) is not established. 12. Another reasoning given by the adjudicating authority to penalise all the appellants is that a conspiracy was hatched amongst all of them. It is the finding of the Commissioner that all the appellants came together and enticed diplomats and utilised them to further their smuggling interest. This finding of the Commissioner is based on two aspects; firstly, the inculpatory statements of Shri Ashok Oza, Shri Ajay Vora, Shri Manu Jagasia and Shri Mohamed Nasser, and secondly the seizure of the goods from the premises of M/s. Amar Wire Rolling Mills which belong to Shri Ashok Oza. We find that all the aforementioned persons retracted from their statements at the first available opportunity when they were produced before the Judicial Magistrate. The Commissioner has also accepted at page 38 of the order that the statements were retracted sometime later as a defence perhaps under legal advice, to save themselves from the advers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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