TaxTMI 
TaxTMI 
2010 (7) TMI 419
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Facts :- 3.Specific information was received by the SIIB (Import) on 23rd May 2006 from an unregistered informer that the supply vessel 'Sea Bulk Toota' is indulging in illegal sale of smuggled diesel to barges in and around Mumbai Docks. The SIIB (Import) was also informed that presently the vessel was anchored near Chinai Tekdi, opposite Ferry Wharf and will be delivering around 30,000 to 40,000 litres of diesel to the barges in the night of 23rd May 2006 around 11.00 p.m. Based on the information, the SIIB (Import) made necessary arrangements for conducting the search in the night of 23rd May 2006 itself. 4. On the same night, a NGO had approached SIIB (Import) Unit with an information that smuggled diesel was being off-loaded on small barges/fishing crafts near Mora Jetty. The staff of SIIB (Import) alongwith the NGO and their Informers set of to Mora Jetty. After reaching Mora Jetty, the informers of the NGO could not locate the barges and after waiting for sometime, the team of officers alongwith the office-bearers of the NGO and their informers returned back to BPX, Mole station where the Customs team then tried to physically contact their informant who had gi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iven due to the raid by Customs party. 7.After this, the team of Custom Officers alongwith the Panchas escorted the Tandel of the barge Mr. Viplav Kumar Rai to the supply vessel 'Sea Bulk Toota' and while two officers stood to guard near the Tandel of the barge, the remaining staff alongwith the Panchas commenced the search of the supply vessel which resulted in the recovery of unaccounted foreign currency of US$ 27050 from the cabin of the Chief Engineer Mr. Errol Tennyson. The currency had been concealed among readymade garments in a black coloured Zipper bag in the cabin of Mr. Errol Tennyson. Preliminary interrogation of Chief Engineer Mr. Errol Tennyson revealed that this money was the sale proceeds of the sale of diesel on earlier occasions. All the foreign currency amounting to US $ 45,650.00 equivalent to Rs. 20,55,000/- (approx.), the barge 'M.L. Anchor' alongwith 40,000 litres of diesel and the vessel 'Sea Bulk Toota' alongwith 1,35,000 litres of diesel (as declared by Chief Engineer Mr. Errol Tennyson) were taken over and seized under the provisions of the said Act read with the Foreign Exchange Management Act, 1999 (FEMA). Total quantity of the diesel seized was 1,75....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Act is correct, legal and proper? 12.The Revenue filed an Appeal under Section 129D(4) of the said Act before the CESTAT, which Appeal was dismissed vide its order dated 5th August 2008. 13. Being aggrieved by the order of the CESTAT dated 5th August 2008, the Appellant filed the above Appeal which as stated above, was admitted on 15th April 2009 on the question of law set out in paragraph 2 above. Submissions :- 14.Mr. Jetly, learned Advocate appearing for the Appellant has submitted that the order dated 5th August 2008 passed by the CESTAT is arbitrary, perverse and lacks any vestige of fairness and is therefore, liable to be set aside. The CESTAT has ignored the evidence on record, more particularly, the statement of Mr. Tennyson, Chief Engineer of the supply vessel 'Sea Bulk Toota', wherein he states that the Captain of the vessel i.e. Respondent No. 1 was also involved with him in the illegal sale of diesel and both were sharing the profits. Mr. Jetly submitted that the Respondent No. 1 has in his statement admitted the knowledge of illegal sale of diesel for profit. The Respondent No. 1-Captain has also admitted the purchase of diesel from vessels coming fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cate the Respondent No. 1-Captain in the crime. The submission made by the Revenue that the Respondent No. 1-Captain has in his statement admitted the knowledge of illegal sale of diesel for profit and has admitted purchase of diesel from vessel coming from U.A.E. and supply of 40 Mts of diesel to the barge 'M.L. Anchor', is belied by the statement of the Respondent No. 1-Captain itself, as recorded by the Customs Authorities. 18. It is submitted that the CESTAT has therefore, after taking note of the entire evidence pertaining to the case of the Respondent No. 1-Captain correctly taken a view that the findings reached by the Adjudicating Authority in dropping the proceedings initiated against the Respondent No. 1-Captain, are correct and are well-reasoned and do not require any interference. It is, therefore, submitted that the Appeal filed by the Revenue be dismissed against Respondent No. 1-Captain. Conclusion :- 19.We have gone through the detailed order of the Adjudicating Authority, which inter alia contains the entire evidence recorded in the matter pertaining to the illegal sale of high speed diesel from the 'Sea Bulk Toota' to the barge 'M.L. Anchor'. We hav....