TaxTMI 
TaxTMI 
2015 (9) TMI 1197
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....under section 112(a) of the Customs act, 1962, while directing absolute confiscation of the said seized diamonds stating them as rough diamonds. Before the adjudicating authority Ms. Kanchna had requested for permitting her to redeem the goods on payment of fine, which was rejected. One Appeal filed by Bhargav B. Patel challenges earlier Order-in-Original dated 22.11.2005 by which penalty of Rs. 5 lacs was already imposed upon him. Another Appeal filed by him challenges the aforesaid Order-in-Original dated 28.3.2013 passed under erroneous assumption that no appeal was preferred against Order dated 22.11.2005 by him and thereby confirming penalty of Rs. 5 lacs on him. 4. In the earlier round, Appeals filed by said Ms. Kanchna and Nilesh B. Patel against the Order-in-Original dated 22.11.2005 imposing on them penalties of Rs. 1 Lac and Rs. 2 Lacs respectively, were allowed by way of remand by Tribunal. Thereafter, the impugned Order-in-Original dated 28.3.2013 is passed in de-novo adjudication. 5. We have carefully considered the rival submissions and the available records. The Ld. DR has supported the impugned Orders and submitted that the Appeals are liable to be dismissed b....
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.... to attempted duty evasion by the shipper. (v) In his further statement recorded on 03.05.2005, 09.05.2005, 10.05.2005, 12.05.2005, 13.05.2005, 16.05.2005, 24.05.2005, 07.06.2005, 13.06.2005, 09.09.2005, 02.09.2005, 15.09.2005, 23.09.2005 and 29.09.2005 Shri Bhargav Patel stated inter alia that the seized diamonds did not belong to him and that he did not know as to why they came in the name of his sister. He stated that the diamonds were not called for by him. He did not know who were Som, Pannifer and Ms. Kanchana. He did not call for any diamonds and came to know about it only after getting the summons in his sister's name. He did not have contact with any person named Jadhav for helping him in his business. He did not make any calls to M/s. Fedex about anything for the delivery of the parcel under seizure, nor instructed anyone for the same. He did not misuse his sister's name for getting diamonds illegally. He did not give any instructions to Fedex for delivery of the seized parcel. He did not know the inter-relationship of Som, Pannifer or M/s. Bhargav Gems. His brother did not send parcels in his sister's name at Mumbai address. Neither he, nor his siste....
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....he matter was accordingly adjourned to 17.1.2006 at 11.00 hours to appoint an approved assessor to determine the value of the diamonds. It was also observed that the adjudication order would become non est with the admission of the applications. 07.02.06 The respondent filed writ petition no. 821 of 2006, challenging the interim order passed by the Settlement Commission. It is submitted without prejudice, that this writ petition was filed before expiry of time limit for filing appeal against the impugned order. 20.07.06 By an order passed by the Hon'ble Bombay High Court in writ petition no., 821 of 2006 filed by the respondent, further proceedings in the settlement application filed by the applicant, came to be stayed. Whereas the impugned order claims that goods were not dutiable, before the Hon'ble High Court the department claimed that duty leviable would be 1.58 lakhs. 07.11.07 During the pendency of this stay order by the Hon'ble Bombay High Court vide ex-parte final order passed by the Settlement Commission, the application filed by the applicant was rejected interalia for the reason that the SCN has been adjudicated by the competent authority o....
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....hat she has not conspired with M/s Fedex to M/s Jeena & Co. or any customs officer; that she replied to the A.I.U. Summons No. AKS/229/05 vide letter dated 26-09-2005 and informed the factual position to the case wherein she has claimed the diamonds and also informed that she had invested her savings in these diamonds; that she made efforts to recall the consignment, but failed; that she chose to send the parcel at the Mumbai address of Shri Patel, in the name of "Shilpaben", as she knew Patel's brother and other family members in India; that she could have even collected the same at the office of the courier company itself that cut and polished diamonds seized by the department are not prohibited goods, for the purpose of importation into India that she is the owner of the seized diamonds, and is claiming the release of the diamonds, by accepting her true duty liability; that it was the first courier consignment sent by her; that she is not a habitual offender and she will never indulge in such fraudulent practice in future; that she further prays that the said diamonds may kindly be released to her on a nominal redemption fine and leviable Customs duty." 9. It is also a ma....
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....ppearance before the office of AIU, in connection with the said import of diamonds in a fraudulent manner. Vide letter dated 26-09-2005, I replied to the summons and informed the factual position to the AIU. A copy of the said letter is annexed hereto and marked as Exhibit-'A'. I claimed the diamonds and I also informed that I had invested my savings in these diamonds. I made efforts to recall the consignment, but I failed. I also informed that I chose to send the parcel at the Mumbai address of Shri Patel, in the name of "Shilpa Ben", as I knew them. 10. I say that I could have collected the parcel through "Mr. Jimmy" immediately upon delivery of the parcel at their residence, or could have even collected the same at the office of the courier company itself. 11. Vide this letter dated 26-09-2005, I categorically informed the officers of the Customs department that it was the first courier consignment sent by me, 12. A Show Cause Notice bearing F. No. SD/INT/AIU/UNI-2/2005/STF dated 29/09/2005 has been received by me. The said Show Cause Notice is not annexed and marked as Exhibit - 'B' is a copy of the Show Cause Notice bearing F. No. SD/....
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....f section 125 in a case of concealment was pleased to hold that attempt to import gold un-authorisedly will come under the second part of Section 125(1) of the Act where the adjudging officer is under mandatory duty to give option to the person found guilty to pay fine in lieu of confiscation. Section 125 of the Act leaves option to the officer to grant the benefit or not so far as goods whose import is prohibited but no such option is available in respect of goods which can be imported, but because of the method of importation adopted, become liable for confiscation. Hon'ble Madras High Court in T Elavarasan, 2011 (266) ELT 167 (MAD HC), was pleased to rely on the said judgment of Hon'ble Andhra Pradesh High Court and held that an option has to be given to the petitioner to pay the applicable customs duty and the redemption fine and to get the gold jewellery released, as per Section 125 of the Customs Act, 1962. A larger Bench of this Tribunal in Peringatil Hamza vs. CC Airport, Mumbai - Appeal No. C/65/08 vide order dated 23.6.2014 in Appeal No. C/65/08-MUM held that currency beyond permissible limit are prohibited goods, however, without these binding precedents in the c....
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....;may' and 'shall' used in the said section, the definition of 'prohibited goods' is inapplicable by application of settled principles of statutory interpretation as held in Ramesh Mehta vs Sanwal Chand Singhvi, (2004) 5 SCC 409. Under section 125 of the Customs Act, unless the importation or exportation of goods is expressly 'prohibited', the Adjudication Authority is obliged to offer to the Owner the goods an option to pay fine in lieu of confiscation. Since the import of 'cut and polished diamonds' is not expressly prohibited under Section11 of the Customs Act, 1962 or by any other statutory notification, we find merit in the ground that an option to redeem them on payment of fine in lieu of confiscation was mandatory. However, after conclusion of the hearing, on instructions, advocate for Ms. Kanchna informed that now she will not avail the option of redemption even if granted. Therefore, we are not interfering with the order of absolute confiscation. 12. Now, so far as Bhargava Patel and Nilesh Patel are concerned, it is seen that Bhargav B. Patel had filed Criminal Writ Petition No. 2478 of 2005 before the Hon'ble Bombay High Court se....