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2016 (10) TMI 200 - AT - CustomsImposition of penalty under Section 112(a) of Customs Act, 1962 - import of rough diamonds - restriction on import - Kimberley Process Certificate - seizure - confiscation of rough diamonds under section 111 of the Customs Act, 1962 - Shri Narendra Raval the owner of rough diamonds - is Shri Narendra Raval involved in the illegal import or smuggling of seized Rough Diamonds brought by Shri Jorabhai and Shri Premabhai? - Held that - the only evidence against Shri Narendra Raval is the statement of Shri Premabhai dated 22.04.2011. In the absence of other evidences corroborating and supplementing the said statement, Shri Narendra Raval cannot be held guilty on the basis of such uncorroborated statement only, that too of co-accused. The decision in the case of Vinod Solanki vs. UOI 2008 (12) TMI 31 - SUPREME COURT has been relied upon. Shri Narendra Raval, a Kenyan citizen and, resident at Nairobi, no penalty is imposable on him as per the provisions of Customs Act which has jurisdiction within the territory of India only - jurisdiction of Customs Act to foreign citizen and to territory beyond India - Held that - the issue is academic. The decision in the case of C.K. Kunhammed vs. CC 1992 (3) TMI 199 - CEGAT, MADRAS would apply. Imposition of penalty set aside - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Connection of Shri Narendra Raval with the smuggling of rough diamonds. 2. Evidentiary value of statements made by co-accused. 3. Jurisdiction of Customs Act over a foreign citizen. Issue-wise Detailed Analysis: 1. Connection of Shri Narendra Raval with the smuggling of rough diamonds: The appellant, Shri Narendra Raval, contested the imposition of a Rs. One Crore penalty under Section 112(a) of the Customs Act, 1962, by the Commissioner of Customs, Ahmedabad. The case originated from the interception and seizure of 48637.525 carats of Zimbabwe-origin rough diamonds from two individuals, Jorabhai and Premabhai, who initially claimed the diamonds belonged to Shri Narendra Raval. The Tribunal noted that the appellant denied any connection with the smuggling activities and argued that his name was mentioned by the co-accused due to his well-known status. The appellant also provided evidence, including passport entries and a certificate from the Tanzanian authorities, proving his absence from Kenya during the alleged meeting with the co-accused. 2. Evidentiary value of statements made by co-accused: The Tribunal examined three types of evidence against Shri Narendra Raval: the initial statements of Jorabhai and Premabhai, call detail records, and statements of witnesses Chetanbhai V. Shah and Ajaybhai M. Khambhadiya. The Tribunal found that the call records did not provide conclusive evidence of any incriminating activities. The statements of the witnesses were discredited as they were proven factually incorrect based on the appellant's travel records. The Tribunal also noted that the initial statements of Jorabhai and Premabhai were retracted, and there was no mention of Shri Narendra Raval in the Panchnama. The Tribunal concluded that the uncorroborated statement of a co-accused could not be the sole basis for penalizing Shri Narendra Raval, citing various Supreme Court decisions. 3. Jurisdiction of Customs Act over a foreign citizen: The appellant argued that as a Kenyan citizen residing in Nairobi, the Customs Act should not apply to him. The Tribunal acknowledged this argument but deemed it academic since the decision was made on merits. However, it noted that the appellant might have a valid point based on previous Tribunal decisions in similar cases. Conclusion: The Tribunal concluded that the department failed to establish Shri Narendra Raval's involvement in the smuggling of the seized rough diamonds. Consequently, the impugned order was set aside, and the appeal was allowed. The issue of jurisdiction was noted but not decided upon, as the case was resolved on factual grounds. The operative portion of the order was pronounced in court at the conclusion of the hearing.
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