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2012 (6) TMI 104

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....earned Consultant appearing for the Applicants is that they are only employees of M/s. Jain Logistics Pvt. Ltd., Kolkata-700 007. The goods in question are absolutely confiscated in this case. The Department could not bring out any role against the Applicants in regard to smuggling of Red Sanders wood of Indian origin. In support of their contention, learned Consultant placed reliance on the Hon ble Supreme Court s decision in the case of Bhavya Apparels Pvt. Ltd. vs. Union of India reported in 2007(09)LCX0007. He also placed reliance on a decision in the case of M/s. Saila Shipping & Clearing Agency Pvt. Ltd. & Another vs. CC(Port), Kolakta, vide Order No.S-25-26/KOL/2011 dated 21.01.2011, whereby predeposit of penalty was waived.   ....

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....s Pvt. Ltd and also the Chief Executive; he is the founder of the firm; that Sri Doshi used to collect work from Nepal and would negotiate directly with them; that most of the time Sri Doshi would stay in Nepal and instructed them over telephone; that all the payments were being collected by Sri Doshi from Nepal party and everything was being negotiated by Sri Doshi; that Sri Doshi permanently resides at National Highway 31,JL - 2 Uttar Ramdhan, P.O Naxalbari , Darjeeling 734429 as told to them, but as per his knowledge most of the time he stays in Nepal; that when he comes to Kolkata he used to stay in office at 7, Babulal Lane with family; that another Director of the firm is Madhu Doshi, wife of Vinod Kumar Doshi; that Mrs. Doshi used to....

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....e and hand over the key of the office to one person who would be waiting outside the Office; that at about 11.00 hrs on 18.05.07 after locking the office he handed over the key to the person whom he did not know; that the registered owner of the truck NL01A 9581 was Mrs. Madhu Doshi, wife of Vinod Kumar Doshi; that the driver of the said truck was one Manoj Rai but he did not know the address of Shri Manoj Rai.Regarding receipt of payments for the consignments under seizure Shri Anand Kumar could not give any proper reply. However he stated that on 16.05.07 a draft of Rs.2.60,000/ of Standard and Chartered Bank was received through courier, sent by the Nepal Party and as per instruction of Sri Doshi, the same was deposited to the account of....

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....f Sri Doshi when he left office on 18.05.07 alongwith his office-colleague Sri 'Tarak Saha after closing the office, all the files and documents were available there; that he did not know who took away the files and documents from there; that the person to whom he handed over the key perhaps took away all the office documents; that Sri Doshi always used to keep one set of keys of the office with himself. When he was specifically asked that how it was possible that all the documents vanished in such a short time between when they closed the office and when the DRI officers reached in front of their office at about 12.30 hrs on 18.05.07, he stated that if anything happened that was beyond his knowledge; I that he did know where Shri Doshi was....

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....uce paras 31 & 33 of the impugned Order-in-Original hereunder for better appreciation of the matter:-   31. Relevant extract of Section 114 of the Customs Act is as follows:-   Penalty for attempt to export goods improperly, etc. - Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 113, orabets the doing or omission of such an act, shall be liable.   (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act, whichever....