TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 853
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.... 26. The imported goods as mentioned above are ordered to be confiscated under Section 111(d), 111(l) and 111(m) of the Customs Act, 1962 read with Section 3, 7 and 11 of Foreign Trade (Development and Regulation) Act, 1992 Rule 12 and 14 of Foreign Trade (Regulation) Rules, 1993, Para 2.12 of Foreign Trade Policy 2004-09 and Section 11 of Customs Act, 1962. The option to redeem the same is given on payment of Rs. 15 (Rs Fifteen Lakhs) as redemption fine under Section 125 of Customs Act, 1962 within a month of this order. On redemption of goods, appropriate duty, interest and other charges also to be paid. 27 I impose penalty under Section 112 of Customs Act as detailed below: I. Shri Manish Karia @ Manish Shah Rs. 5,00,000/- (Rs Five Lakhs only) Ii. Shri Vishal Dedhia Rs. 5,00,000/- (Rs Five Lakhs only) Iii. Shri Akbar @ Akbar Ali Rs. 2,00,000/- (Rs Two Lakhs only) Iv. Shri Sanjay Nissar Rs. 2,00,000/- (Rs Two Lakhs only) V. Shri Shamshuddin Abu Rs. 1,00,000/- (Rs One Lakh only) Vi. Shri T M Savla Rs. 1,00,000/- (Rs One Lakh only) Vii. Shri C S Gomes Rs. 1,00,000/- (Rs One Lakh only) Viii. Shri Sanjay Bugde Rs. 50,000/- (Rs Fifty Thousand only....
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.... submissions made in appeal and during the course of arguments on appeal. 4.2 The order of confiscation of goods and imposition of redemption fine is not under challenge. We also find that importer M/s Shri Saibaba Impex is not in appeal before us. As per the scheme of Section 111 and Section 112 of the Customs Act, 1962, penalties under Section 112 of the Customs Act, 1962 flow as natural consequence of goods being liable for confiscation under Section 111 of Customs Act, 1962. Apparently penalties under Section 112 are imposable both on the person who has imported the goods held liable for confiscation and on all those who had aided and abetted in the act of illegal importation. 4.3 In this case the facts are not in dispute in his detailed statement recorded under Section 108 of Customs Act, 1962, . on 02.12.2008, Shri Shamsuddin Abu, admitted as to how he had at instance of Shri Akbar Ali lent his name and signature to obtain the bogus IEC in the name of M/s National Enterprises. This IEC was then lent for monetary consideration to Shri Akbar Ali, for making bogus and fraudulent imports. * on 30.03.2009, Shri T M Savla, admitted that he is an employee in M/s Jyoti Trading Co....
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....o identify the suppliers and palace the initial orders and thereafter advised Shri Sanjay Nissar. He had procured bogus IEC's to avoid the payment of Income Tax, Sales Tax and Other Taxes. They had in past imported about 200 consignments by following the same modus operandi. That he had obtained fake IEC in the name of his employees namely Shri T M Savla and Shri C J Gomes. He stated all the past imports made were also misdeclared in respect of weight and value. He deposited Rs. 35,50,000/- as differential duty on the past imports made by him. * the facts as stated by Shri Manish Karia have been corroborated by Shri Vishal Dedhia in his statement recorded under Section 108 of Customs Act, 1962 on 18.05.2009. 4.4 Shri Akbar Ali @ Shri Akbar Pattarkandy @ Shri Akbar Mangladen did not respond to the summons issued to him. For his avoiding the summons and not responding, a complaint under Section 174 of the Customs Act, 1962 was also filed before Hon'ble Court of Chief Metropolitan Magistrate on 21.01.2009. However the investigations made revealed that he held or managed the IEC's in name of M/s D S Enterprises, M/s Peekay Enterprises, M/s Zodiac Enterprises, M/s National Enterprise....
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....High Court an, objection was taken that he had no, locus standi to maintain the writ petition, because he had no interest in the confiscated goods and consequently, this objection should not be entertained for the first time in this Court. Learned Counsel further submits that proceedings of confiscation being penal in nature, the burden was on the Department to show by cogent and convincing evidence that the goods had been illicitly imported into India and that no part of this burden could be shifted to the person claiming the goods. It is emphasised that in the present case, no evidence whatever was produced by the Department to show that the goods in question we smuggled goods. The Collector's order-proceeds are the argument-calling upon Bhoormull to prove that he had purchased these goods in the normal course of business was contrary to the law laid down by this Court in Amba Lal v. Union of India [[1961] 1, S.C.R. 933.]. Reference has also been made to several decisions of the High Courts, but most of them turn on their own facts and do not elucidate the principle beyond what was laid down in Amba Lal's case (supra) It cannot be disputed that in, proceeding for imposing....
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...., which coupled with the presumptive evidence adduced by the prosecution or: the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn. Article 320, page 291),. the ".Presumption of innocence is, no doubt, presumption juris, but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter is only a presumption of fact- Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. Another point to be noted is that the incidence, extent and nature of the burden of proof for proceedings for confiscation under the first part of the entry i....
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....der section 108 of Customs Act, 1962, Hon'ble Supreme Court has in case of K I Pavunny [1997 (90) ELT 240 (SC)] held as follows: "Next question for consideration is: whether such statement can form the sole basis for convition? It is seen that, admittedly, the appellant made his statement in his own hand-writing giving wealth of details running into five typed pages. Some of the details which found place in the statement were specially within his knowledge, viz., concealment of the 200 biscuits in his earlier rented house till he constructed the present house and shifted his residence and thereafter he brought to his house and concealed the same in his compound; and other details elaboration of which is not material. The question then is: whether it was influenced by threat of implicating his wife in the crime which is the sole basis for the claim that it was obtained by threat by PW-2 and PW-5? In that behalf, the High Court has held that it could not be considered to be induced by threat that his wife will be implicated in the crime and accordingly disbelieved his plea. It is seen that admittedly after the appellant gave his statement, he was produced before the magistrate thou....
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....ainst him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra vs. Union of India [1997 (89) ELT 464], decided by a two Judge bench to which one of us, K. Ramaswamy J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of the goods. He filed a writ petition to summon the panch (mediater) witnesses for cross-examination contending that reliance on the statements of those witnesses without opportunity to cross-examine them, was violative of the principle of natural justice. The High Court had dismissed the writ petition. In that context, it was held that his retracted confession within six days from the date of the confession was not before a Police Officer. The Custom Officers are not police officers. Therefore, it was held that "the confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner". As noted, the object of the Act is to prevent large-scale smuggling of precious metals and other dutiable goods and to facilitate ....