TaxTMI 
TaxTMI 
2016 (10) TMI 200
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.... are restricted and should be accompanied by Kimberley Process Certificate. Since the subject Rough Diamonds were not accompanied by the mandatory Kimberley Process Certificate, the same were seized by officers. The said two persons mentioned that the said rough diamonds belonged to Shri Narendra Raval in their initial statements recorded on 22.04.2011. A show cause notice dated 10.10.2011 was issued proposing confiscation of the said rough diamonds and imposition of penalties on all the said three persons including Shri Narendra Raval. However, the department could not serve the show cause notice on Shri Narendra Raval as he was a Kenyan citizen residing in Nairobi (Kenya). The said show cause notice was adjudicated by the Commissioner of Customs, Ahmedabad vide OIO No. 18/Commr/DRI/2012 dated 31.10.2012 whereby the adjudicating authority ordered absolute confiscation of the seized rough diamonds and imposed penalty of Rs. One Crore each on all the three persons. Aggrieved by the said order of the Commissioner, all the three persons preferred separate appeals before this Tribunal. Shri Narendra Raval pleaded that neither the show cause notice nor the Order-in-Original ....
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....ss-examination held on 21.4.2014 before the adjudicating authority. Learned Counsel therefore contends that the said initial statements of Shri Jorabhai and Premabhai should not be given any weightage as far as Shri Narendra Raval is concerned. Shri Premabhai had also explained in the cross-examination that the telephonic conversations with Shri Narendra Raval was with respect to purchase of land in Gujarat for starting an orphanage, and that except for the same, they had no other talks or any dealings or business. Learned Counsel submits that the only other evidence relied upon by the department against Shri Narendra Raval is the statement of Shri Chetanbhai V. Shah and Shri Ajaybhai M. Khambhadiya that they had visited Nairobi on 25.03.2011 and had met Shri Jorabhai and Shri Premabhai at the guest house of Shri Narendra Raval and at that time Shri Jorabhai and Shri Premabhai had shown some rough diamonds to Shri Chetan V. Shah and Shri Ajaybhai M. Khambhadiya and they declined to buy it because of high price quoted by Shri Jorabhai/ Premabhai. They mentioned that Shri Narendra Raval was present in the said meeting they had with Shri Jorabhai and Shri Premabhai on 25.03.2011....
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....nal) wherein Member (Technical) held that "when such goods imported into India offend the provisions of the Customs Act by an act of commission or omission deliberately done abroad by a foreigner, he cannot escape the mischief of the penal provisions". Learned Authorised Representative also filed written submissions and case laws. 6. We have carefully considered the arguments of both sides and examined the records and evidences, and the case laws cited by both sides. It is observed that the case against Shri Narendra Raval is built upon three type of evidences; (i) Initial statements of Shri Jorabhai and Shri Premabhai dated 22.4.2011, (ii) the Call Detail Records (CDR), and (iii) the statements of Shri Chetanbhai V. Shah and Shri Ajaybhai M. Khambhadiya and their depositions during the cross-examination. (a) With respect to the call records, it is observed that there were 16 calls, duration ranging from a few seconds per call to 10 minutes per call, during 12.4.2011 and 22.4.2011, between Shri Premabhai and Shri Narendra Raval. Similarly, there were 9 calls of similar duration between Shri Jorabhai and Shri Narendra Raval during the same period. Ho....
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.....04.2011 mentions that the rough diamonds seized from their possession were brought from Shri Narendra Raval for sale in India and sale proceeds were to be remitted back to Shri Narendra Raval. Learned Counsel for the appellant has vehemently disputed the admissibility of the statements of Shri Jorabhai/ Shri Premabhai. We find that Shri Jorabhai and Shri Premabhai had given initial statements on the day of seizure i.e. on 22.4.2011. However, they have stated in their Bail Application on 26.04.2011 before the Hon'ble Chief Judicial Magistrate that these statements were recorded by the officers of DRI by force and they deny whatever is said in the said statements. Both of them, during their cross-examination held on 21.4.2011, had also averred that their statements dated 22.4.2011 were prepared by the officers and they were forced to sign. Both of them, inter-alia, denied any role of Shri Narendra Raval in the smuggling of the said rough diamonds. It is observed that the Panchnama which is in the local language (Gujarati) and which narrates the gist of confessions of Shri Jorabhai/ Shri Premabhai does not mention anywhere about Shri Narendra Raval. It is only the statement of Shri P....