9911796707
TMI Blog1998 (11) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... ch declared to contain cut and polished diamonds to the Jewellery Appraiser of the Postal Appraising Section of the Custom House, Bombay for assessment for the purpose of export to Hong Kong by post parcel. The consignment sought to be exported in the name of S.K. Gems under invoice dated 28-2-1989 was declared to be two lots of cut and polished diamonds totally weighing 417 carats or a declared value of US $. 1,82,960/- or Rs. 27,64,000/-. Similarly the other consignment by the exporter in the name of Hemant Exports had an invoice dated 28-2-1989 declared to contain one lot of 439 carats of cut and polished diamonds valued at Rs. 28,65,000/-. The parcels said to contain cut and polished diamonds and the related export documents were presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assistant Collector of Customs and Ashok Parekh introduced himself as proprietor of M/s. S.K. Gems before the Assistant Collector. He also made endorsement below the examination report on the reverse of the export invoice of M/s. S.K. Gems to the effect that the shortage of 1 carat was due to mistake at the time of weighment and signed as S.R. Joshi. It was decided to re-examine the goods. But, before the commencement of re-examination and panchanama Ashok Parekh and Shirish Prabhu disappeared from the examination centre. 4. The re-examination was conducted by the Jewellery Appraiser in the presence of Jatin Shah and Sugathan and independent panchas. It was found that the two lots declared to contain cut and polished diamonds under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his wherein he said that Girish Shah is the proprietor of the firm dealing in import and export of diamonds. He further stated that Girish Shah had handed over to him 3 packets of cut and polished diamonds and 3 packets of synthetic stones with instruction to replace real diamonds with synthetic stones after valuation by the Appraiser. He said that after export of synthetic stones in the said two consignment the real diamonds were to be returned to the appellant. 5. During the course of investigation, office premises of appellant in Bombay were searched on 3-3-1989 and a hand written slip indicating import-export code numbers of M/s. S.K. Gems and Hemant Exports was recovered. The appellant gave a statement on 8-3-1989 denying having s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporting such huge consignment of diamonds on credit basis and for using their name and address appellant used to pay certain commission. He further stated that he has not received the consignment under seizure in the name of S.K. Gems or Hemant Export either from Sudhir Joshi or Hemant Joshi. 7. Statement of Sudhir Joshi of S.K. Gems and Hemant Joshi of Hemant Exports also indicated that they had been acting as dummy in effecting of exports. Following further investigation show cause notice was issued to the persons concerned including the appellant on 30-8-1989, and on considering the reply and hearing the appellant in the matter during which cross-examination was also allowed, the Collector of Customs passed the impugned order whereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, 1996 (83) E.L.T. 258 wherein it has been held that the statement of a person in the status of co-accused obtained under Section 108 of the Customs Act forms material evidence. It was, further, urged that the search of the office premise of the appellant lead to the recovery of the export code numbers in hand written slips of the two firms in whose names the export was sought to be effected. 10. The submissions made by both sides have been carefully considered. The appellant has been implicated by the statement of his own employee, who is also a relation of his, namely Shri Jatin Shah. He has clearly admitted that the packets of cut and polished diamonds, and synthetic stones had been handed over to him by the appellant with instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court held that such statement can be used as substantiative evidence connecting the petitioner with the contravention. Therefore, the appellant s connection with the substitution of the cut and polished diamonds with synthetic stone has been established with sufficient evidence and the penalty on him under Section 114 of Customs Act is, therefore, sustainable. This brings up the question of the quantum of penalty on the appellant and while deciding this point, the observation in the impugned order, which the learned Counsel has relied upon, indicating that Ashok Parekh emerges as the principal offender and not the appellant, and the further observation in the impugned order that though Ashok Parekh, S.R. Joshi and Hemant Joshi have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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