2019 (9) TMI 1308 - AT - Customs

Imposition of penalties u/s 112 and 114A of CA on various noticees - confiscation of seized Gold Jewellery - HELD THAT - The proceedings were initiated against all the noticees including the two SEZ units. Vide impugned order passed by Commissioner of Customs, Noida, demand of duty stand confirmed against M/s Ajit Exports as also against M/s Vee Ess Jewellers Pvt. Ltd. along with imposition of penalties etc. upon them. In addition, he imposed penalty upon various other noticees including the present appellants. Inasmuch as M/s Vee Ess Jewellers and M/s Ajit exports have not filed appeas against the impugned order as also the said order does not stand appealed against by various other noticees, the appeals of the present appellants are required to be decided on the basis of the evidences relatable to them only. The appeal of each and every appellant is decided separately by adverting to evidences available in respect of them only.

Issues Involved:
1. Confiscation of gold jewelry and imposition of penalties.
2. Alleged misuse of SEZ scheme by importing gold jewelry under false pretenses.
3. Role of various appellants in aiding and abetting the fraudulent activities.
4. Legality of penalties imposed under Sections 112, 114, and 114AA of the Customs Act, 1962.
5. Right to cross-examination of witnesses.
6. Jurisdiction over foreign entities under the Customs Act.
7. Return of seized gold jewelry.

Issue-wise Detailed Analysis:

1. Confiscation of Gold Jewelry and Imposition of Penalties:
The Directorate of Revenue Intelligence (DRI) received intelligence about companies misusing the SEZ scheme to import gold jewelry by mis-declaring it as outdated for repair, remaking, and polishing. The imported jewelry was allegedly disposed of in the Indian market, and export obligations were fulfilled using locally made jewelry. The Commissioner of Customs, Noida, imposed penalties on various entities and individuals, including M/s Shakti Jewellers Pvt. Ltd., M/s Mahesh Kumar Moolchand Kothari, and others.

2. Alleged Misuse of SEZ Scheme:
DRI officers conducted searches and found packages of gold jewelry in the premises of M/s Vee Ess Jewellers Pvt. Ltd. and M/s Ajit Exports. The jewelry was declared as outdated gold for remaking, but it was found to be new and ready for sale. The investigation revealed that the SEZ units were diverting imported jewelry into the domestic market and fulfilling export obligations with locally procured jewelry.

3. Role of Various Appellants:
- M/s Shakti Jewellers Pvt. Ltd.: Penalty of ?6 crores each under Sections 112 and 114 of the Customs Act. The Revenue's case was based on fax messages found in the SEZ units' premises. The Tribunal found no evidence linking M/s Shakti Jewellers to the fraudulent activities and set aside the penalties.
- Shri Bharat Jamnadas Jagda: Director of M/s Shakti Jewellers and Proprietor of M/s Omkar Jewellers. Penalties of ?8 lakhs each under Sections 112 and 114. The Tribunal found no evidence of his involvement in the fraudulent activities and set aside the penalties.
- M/s Mahesh & Co. Pte. Ltd. and Shri Mahesh Kumar: Penalties under Sections 112, 114, and 114AA. The Tribunal found no evidence of their involvement in the fraudulent activities and set aside the penalties. The Tribunal also directed the return of seized gold jewelry to M/s Mahesh & Co.
- Shri Mukesh Mahesh Kumar Kothari and Shri Mahesh Kumar Moolchand Kothari: Penalties under Section 112. The Tribunal found no evidence of their involvement and set aside the penalties.
- Mohd. Irfan Munshi, Shri Jaison Simon Panakkal, and Shri Rajesh Ratanlal Pacheria: Employees of M/s Damasy Retail Jewelers Pvt. Ltd. Penalties under Section 112. The Tribunal found no evidence of their involvement and set aside the penalties.

4. Legality of Penalties Imposed Under Sections 112, 114, and 114AA of the Customs Act, 1962:
The Tribunal found that the penalties imposed under Sections 112 and 114 require knowledge or reason to believe that the goods were liable to confiscation. The Tribunal found no evidence of such knowledge on the part of the appellants and set aside the penalties.

5. Right to Cross-examination of Witnesses:
The Tribunal emphasized the importance of cross-examination of witnesses. The statements of various deponents were not tested through cross-examination, making them unreliable. The Tribunal referred to several precedents, including the Supreme Court's decision in Andaman Timber Industries, which held that not allowing cross-examination violates natural justice principles.

6. Jurisdiction Over Foreign Entities Under the Customs Act:
The Tribunal noted that M/s Mahesh & Co. Pte. Ltd., a company incorporated under Singapore laws, cannot be penalized under the Customs Act, which has territorial jurisdiction only within India. The Tribunal referred to precedents like Relax Safety Industries and Guru Electronics Singapore Pte. Ltd., which support this view.

7. Return of Seized Gold Jewelry:
The Tribunal directed the Customs Authority to allow the re-export of gold jewelry sent by M/s Mahesh & Co. Pte. Ltd. to M/s Vee Ess Jewellers Pvt. Ltd. since the consignee did not file any bill of entry, and the ownership remained with the appellant.

Conclusion:
The Tribunal set aside the penalties imposed on various appellants due to the lack of evidence and failure to provide cross-examination of witnesses. The Tribunal also directed the return of seized gold jewelry to M/s Mahesh & Co. Pte. Ltd. The appeal filed by the Revenue was rejected, and all the appeals were allowed with consequential relief to the appellants.

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