TaxTMI 
TaxTMI 
2011 (6) TMI 207
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....s shall be exported from SEEPZ or shall be used for manufacturing jewellery for export from SEEPZ. The Commissioner imposed a penalty of Rs. 5 lakhs on Shri Dharmesh K Pandya under Section 112(a) and 114 of the Customs Act and a penalty of Rs. 10 lakhs on M/s. Tara Jewels Exports Ltd. under the same provisions. 2. Briefly stated, the facts of the case are as follows: (i) On 04/04/1997 the Customs Preventive officers attached to the office of the Development Commissioner, SEEPZ, MIDC, Andheri (East), Mumbai intercepted a white Maruti car bearing No. MH-022-1667 at the main gate of SEEPZ, Mumbai while the said car was coming out of SEEPZ. During the checks the officers recovered four paper packets from one of the occupants of the said car, who was identified as Shri Dharmesh Krishnakumar Pandya, Diamond Manager of M/s. Tara Jewels Exports Ltd. situated at G-44, Gem & Jewellery Complex No.1, SEEPZ, Mumbai. Shri Pandya could not properly explain the contents of the paper packets. Therefore, in the presence of panch witnesses the said packets were opened which resulted in the recovery of 265 carats of cut and polished diamonds and Rs. 1 lakh in cash. The recovered 265 ca....
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.... Jewels Exports Ltd. was recorded on 04/04/1997 under Section 108 of the Customs Act ibid. Shri Atul Gandhi also stated that on careful examination of the diamonds seized from Shri Dharmesh K. Pandya the same were the diamonds which were imported after customs clearance and the same tallied in all respects with the description given in the documents relating to its import. As regards the diamonds seized from the premises of M/s. Tara Jewels Exports Ltd., weighing 265 carats, he confirmed that these were substituted diamonds. (v) Statement of Shri Kiran Doshi, who was alleged to have supplied the indigenous diamonds to Shri Dharmesh Pandya was also recorded under Section 108 of the said Customs Act and Shri Doshi in his statement confirmed that the diamonds seized from the possession of Shri Dharmesh K. Pandya were not the same which were supplied by him. 3. Based on these and other evidences the Commissioner passed the aforesaid order as detailed in the opening paragraph. 4. The learned counsel for the appellant has made the following submissions: (i) Most of the imported diamonds are those which are cut, polished and exported from India and there is....
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....s upon the judgment of this Tribunal in the case of Universal Traders vs. Commissioner of Customs (Exports), ACC, Mumbai 2007 (220) ELT 116. As regards the retraction of his earlier statement by Shri Dharmesh Pandya at the time of filing his application for bail, the learned DR submits that as per the judgment of this Tribunal in the case of Anjani Kumar Shah vs. Commissioner of Customs, Lucknow 2002 (147) ELT 890, it has been held that, for retraction to be valid, it should be addressed to the same authority which recorded the statement and not to any extraneous authority. Therefore, the said retraction has no validity and it is only an afterthought to escape the consequences of law. The learned DR also relies on the judgment of Hon'ble Madras High Court in the case of Commissioner of Customs (Export), Chennai-I vs. Bansal Industries 2007 (207) ELT 346 (Mad.) in support of his contention that element of mens rea are not required for imposition of punishment under the Customs Act, 1962 and therefore the appellant, M/s. Tara Jewels Exports Ltd., are liable to penalty for the action committed by their employee Shri Dharmesh K. Pandya. The learned DR would submit that from the stateme....
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....at they are used in the manufacture of studded jewellery and for export thereafter. Inasmuch as the said diamonds have been removed without being put to use for the purpose for which they were brought in, they are liable to confiscation under the provisions of Section 111(o) of the Customs Act. Inasmuch as the conditions under which they were permitted to be imported have been violated they come under the purview of 'prohibited goods' as defined under Section 2(33) of the Customs Act. The hon'ble apex court in the case of Prakash Bhatia vs. Commissioner of Customs, Delhi [2003(155) ELT 423 (SC)] had held that prohibition of importation or exportation could be subject to certain prescribed conditions, to be fulfilled before or after clearance of goods. If the conditions are not fulfilled, it may amount to prohibited goods in terms of Section 2(33), 11 and 113(d) of the Customs Act, 1962. The ratio of this judgment applies squarely to the facts of the present case. Therefore, under the provisions of Section 125 of the Customs Act, the competent authority can order for its absolute confiscation and he need not give any option to pay fine in lieu of confiscation, if he so thinks. There....