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TMI Blog2000 (7) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... be delivered to certain parties. A show cause notice was issued to various parties and vide the impugned order, the Commissioner (P) Bombay found that the silver seized was liable for penalty and Shri Harish Peshawaria of M/s. Harish Metind Pvt. Ltd. and Bharat Dattani were liable for penalty under Section 112(a)(i) and 112(b)(i) of Customs Act, 1962. 2. The present appeal is filed Bharat Dattani of Jamnagar against the imposition of penalty on him. Shri S.V. Keshvani Advocate appeared for the appellant and Shri K.M. Patwari for the Revenue and after considering the material and the submissions made. We find that (a) Commissioner has found as follows : I have considered the evidence on record in this case including the submissions made at the time of personal hearing and the cross-examination. The charge against M/s. Harish Metind Pvt. Ltd. and Shri Harish Peshwaria, Director of the said firm is that in conspiracy with other persons they imported a consignment of brass scrap with silver concealed in it in violation of Section 111 and 119 of the Customs Act, 1962 thereby rendering the silver liable to confiscation under Section 111(d) of the Customs Act, 1962 and themselves li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overage of the consignment by two invoices and cover of even Sales Tax form. These elaborate precautions and efforts were made by Harish Peshawaria not for the brass scrap, which had not used in Mathura and which ought to have been used in his factory as Jamnagar is a big centre for use of brass scrap but because the consignment contained silver for which he found ready buyers in Mathura. There is also evidence on record that Harish Peshawaria not only corresponded with the foreign suppliers, but had also met their representatives in Bombay. Therefore, Harish Peshawaria cannot plead that he was not aware of the actual contents of the consignment imported by him. As per the evidence before me, all actions in respect of this consignment, directions, instructions were issued by Harish Peshawaria namely placing of the order, its import, its clearance payment of the duty, its storage in Bombay in a godown, its repacking, its transportation to Mathura, payment of octroi, its coverage by Sales Tax Form etc. Therefore, the position which emerges is that Harish Peshawaria of M/s. Harish Metind imported consignment of brass scrap which had substantial quantity of silver, without a valid im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tani acted as representative of Harish Peshawaria, who was the financer for the consignment and that his role was to get the consignment cleared for which he was to get some remuneration, the learned advocate mentioned that the main beneficiary of the smuggling activity was to be Harish Peshawaria and not Bharat Dattani, For this he relied upon elaborate documentary evidence including Harish s instructions to the CHA, his instruction for storage, repacking, transportation of the consignment. The learned advocate also relied upon a bank statement of Harish Peshawaria and G. Shroff from the Corporation Bank of Jamnagar. The entries in the bank account clearly establish that the finance for the two consignments i.e. the impugned consignment as well as one consignment prior to it had been arranged by Harish Peshawaria by taking money from G. Shroff. I, therefore, find merit in the submission of Shri Wazifdar that there is no evidence that Bharat Dattani had made arrangements for financing the impugned consignment. Therefore even though he had admitted earlier that he had financed the impugned consignment, in view of the submissions before me at the time of personal hearing and in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumen nor the means to convince or to intercede on behalf of Harish Peshawaria with the foreign suppliers to send him silver unless he had vital stakes involved in it. Therefore, his actions are not at all consistent with the explanation namely that he was a representative of Harish Peshawaria for the limited purpose of clearance of the consignment. In any case, the undisputed and admitted position is that he had knowledge that the consignment contained silver and in conscious disregard of the law, he concerned himself with the clearance, storage, packing, transporting and disposal of the said contraband silver. That Bharat Dattani had knowledge of import of contraband silver is further supported by documentary evidence namely his own statements which are corroborated by the statement of his uncle, Chandulal Dattani. There is also documentary evidence of his connection with the consignment and his knowledge of silver i.e. the diary which he left behind with his uncle and which was recovered from the premises of his uncle by DRI officers. The diary contained telephone number of Asif of Aalia General Trading who were the shipper of the consignment in this case. Bharat Dattani has, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true" There is no finding in the impugned order about the examinations of statements required as above. Therefore the matter is required to be remanded back to the Commissioner for re-evaluation of the facts and redetermine the matter after examining and coming to a finding and regarding the confession in the statement, more so when ld. Advocate Keshwani has pointed out that the conduct of the investigating officer a witness from DRI, stipulating DRI DEPARTMENT AS NOT RELYING UPON THE SAID SEIZED DOCUMENTS FROM SHRI PESHAWARIA TO THESE PROCEEDINGS and therefore the documents were not brought, is no reason to deny access of these documents to Shri Bharat Dattani and his lawyers to effectively put up defence. Documents not relied by prosecution, but recorded or/and in possession of department, can be vital to defence and if sought, have to be supplied. 3. This appeal is therefore allowed as remand, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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