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TMI Blog1997 (1) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-deposit of a penalty of Rs. 25,00,000/- imposed on him under Section 112 of the Customs Act, 1962 and for stay of its recovery. Applicant Carl F. Peters (GMBH CO.), the owners of the vessel is for staying the operation of the impugned order and to hear the appeal without prior deposit of fine of Rs. 1 crore in lieu of confiscation of the vessel levied in the impugned order, under Section 115(2) of Customs Act, 1962. 2. Ld. Counsels S/Shri Mukherjee and Wadwalkar of M/s. Bhat Saldanha appearing for the applicants submitted that the penalty on applicant Capt. Jens Warner is based on no evidence but on mere inferential findings of the Commissioner that the non-maintenance of verification log relating visitors to the vessel and non-ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een recovered from the vessel in question and it is in evidence that a carrier in this case, Shri Kaiser Hussain, who was caught with the gold concealed on his person as he came out of the vessel, had been a frequent visitor on board contacting the crew members. Reference was made to the reasoning in the Commissioner s order to urge that the concealment and carriage of gold in the vessel can be attributed to want of diligence to take to precautions on the part of the master of the vessel and hence penalty on him under Section 112 of Customs Act is justified. The ld. DR contended that the present case is factually distinguishable from the Bombay High Court judgment cited by applicants as in that case no contraband had been recovered from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act as it had been used for carrying smuggled gold. It was provisionally released on a bond with Bank Guarantee of Rs. 28,15,000/-. 6. David Macaso, a member of the crew and crane operator of the vessel gave a statement saying that it was he who took out the two cloth bags containing the gold from its place of concealment in the ship and these bags were collected by Kaiser Hussain whom he identified. Applicant Jens Warner gave a statement in which he said that David Macaso was among the crew members who had gone ashore while the vessel was at Dubai Port. He said that no verification log was maintained and crew members going ashore and returning were not subjected to any checks. 7. The proceedings against the applicant and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntain even a cursory check on people and crew on board especially considering that the vessel was touching sensitive ports from the Indian Customs point of view. It is not uncommon for Masters of vessels to take some precautions as is evident from Division Bench, Bombay High Court judgment in the case of Mugul Line v. A.K. Dutt - 1990 (45) E.L.T. 382. 9. In the Indo Oceanic Shipping case (supra) there was no recovery of gold from places of concealment in the ship and the High Court found that the Master of the vessel had posted some crewmen on watch duty, but they themselves had indulged in sale of foreign goods. The High Court observed that the Customs cannot insist that independent persons should have been employed to keep a watch on cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the vessel, this is not a fit case for exercising inherent powers to stay the recovery of fine, nor has the applicant produced any material by way of any letter to them in this regard by the department to substantiate their apprehension. 12. We further hold that this is not a fit case for staying the operation of the impugned order in the light of the prima facie view we have taken as above of the case. The application filed by M/s. C.F. Peters GMBH is hence dismissed. 13. [Assent per : G.N. Srinivasan, Member (J)]. - Normally I do not write any separate order. Due to the peculiar circumstances I write a separate order. When the case was taken up for hearing, I informed the appellants whether they have any objection for me to hear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lower authority which is considered by the Tribunal. The Customs, Excise Gold (Control) Appellate Tribunal has been modelled under provisions of the Customs and the Central Excise Acts similar to the Income Tax Appellate Tribunal under Income Tax Act. In dealing with the powers of the Tribunal, the Supreme Court in the case of I.T.O. v. M.K. Mohammed Kunhi - 1969 (71) ITR 815 has held that the Tribunal has such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. The Supreme Court in the case of Union of India v. Paras Laminates (P) Ltd. - 1990 (49) E.L.T. 322 has approved the following observation contained in Maxwell on Interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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