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TMI Blog2006 (1) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... IEN - MODEL 17201-55030 TOYOTA 22100-55210 DENSO, MADE IN JAPAN packed in carton boxes. The driver was interrogated who revealed his identity as K. Ganesh of Kasargod and his cleaner s name as Radhakrishna of Kasargod. Detailed investigations were carried out with regard to the nature of the goods and the smuggled ones from Japan. Another vehicle was also intercepted and the driver revealed his name as T.M. Basheer. That vehicle was accompanied by a person named K. Balakrishnan who gave the details of the persons involved in smuggling the goods. Shri Balakrishnan named one Shri Vinaya and Mohandas. The Investigating Officers were able to trace persons involved in the smuggling and statements of Shri Kudlu Ganesh Rai, Driver; Shri Sadashiva, Driver; Shri Radhakrishna, Cleaner and Shri Rajesh, Cleaner of the vehicles were recorded. Further investigations led to the seizure of a vessel Sai Sagar, which was carrying ready-made garments. One person George Podikunju alias Kunju was the tindel of the vehicle. He was apprehended and statements recorded. Through his statements, the appellant was apprehended and found to be the main person behind the smuggling of the seized goods from the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of funds for a temple that was being built at his native place; that his passport was misplaced at the time of giving statement and that he would produce the same as and when it was traced out. 3. The Commissioner, after detailed analysis of all the statements, including the retraction and also the result of the cross-examination, has come to a categorical conclusion that the appellant was involved in the activity of smuggling of these seized goods and was liable for penalty in terms of Section 112 of the Customs Act. The findings recorded in so far as the appellant s case in paragraph 88 of the order is reproduced herein below : 88. The roles of individuals involved in the smuggling of goods are discussed below- (i) Sri Divakar Shetty, in his statement dated 5-8-99, 6-8-99 13-8-99 recorded by DRI officers, stated that he had purchased the fishing trawler Sai Sagar in the name of Sri Vinaya Kumar Poojari and after some time the ownership of the vessel was transferred in the name of his friend Sri Prem Ram Advani; that he had instructed Sri Vinaya Kumar Poojari to talk to Sri Eshwar Taku Harikantra at Udupi. In statement dated 16-8-99 given before Superintendent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge and jeopardizing the economic stability of the country. For that purpose, it has to be given an interpretation to cover all those who aid and abet in these nefarious activities whether they are principals or accessories which assist the smugglers or supplement their efforts. The use of the word concerned in Section 167(8) shows that a person may be concerned in the importation of smuggled goods, without being a smuggler himself contravening the provisions of Foreign Exchange Act. Therefore, the High Court was right when it observed that if any one is interested or consciously takes any step whatever to promote the object of illegally bringing bullion into the country, then even if no physical connection is established between him and the thing brought, he will be guilty . In this case Sri Divakar Shetty s involvement is established from the statements of the tindel of the vessel, Sri George Podikunju; Sri Vinaya Kumar and Sri Eshwar Taku Harikantra recorded under section 108 of the Customs Act, 1962. These statements were made before the Customs officers and are not retracted. The facts and evidence indicate that the goods under seizure belong to Sri Divakar Shetty and he organ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early analysed all the facts and the statements on record and it has been proved that the Divakar Shetty is involved in the act of smuggling and, therefore, the imposition of penalty was justified. 7. On a careful consideration of the submissions made and examination of the entire records, it is clear that the proceedings against the appellant in terms of Show Cause Notice dated 6-10-1999 is justified. It cannot be said to be vitiated in view of earlier Show Cause Notice having been issued only to Shri K. Balakrishnan. Further investigations and seizure of goods led to the involvement of the appellant and about the other persons being involved in smuggling of the seized goods. Therefore, the Revenue was justified in issuing the Notice to the appellant on the charges of smuggling. The learned Counsel s contention that the statements of the appellant had been resiled and the same should not be taken into consideration does not hold any water. The appellant has given self-implicatory statements revealing details about his involvement. His own close friends like Eshwar Taku Harikantra, Vinaya Kumar alias Vinaya Kumar Poojari and George Podikunju involved him in the act of smuggling o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is recorded in paras 19 to 24 of the impugned order which is reproduced herein below :- 19. Sri Divakar Shetty, S/o Ananth Shetty, resident of Totadamane, Opp. Sri Shirdi Sai Baba Mandir, Kodavur, Adi Udupi in his statement dated 5-8-99 has inter alia stated that he was working as broker for land, car, boat and house, earning annually a profit of Rs. 70-80 thousands; that he frequently went to Mumbai and there he was doing broker business of land and got Rs. 30-40 thousands annually; that as he was afraid of smuggling case he had not appeared earlier; that in April 1999 he had approached Sri George Podikunju @ Kunju and assured good payment; that at that time the fishing boat was under repair in Cortalim of Goa; that Sri George Podikunju had agreed to go to Dubai to bring ready-made garments and gloves bundles to India through sea route by smuggling in Sai Sagar fishing boat; that Sri George Podikunju arranged the crew; that he paid Rs. 75,000/- to Sri George Podikunju for diesel, expenditure on crew, ration and for repair of compass etc.; that Sai Sagar sailed to Dubai on 15-4-99; that Sri George Podikunju, the tindel of the vessel arranged port clearance as per his directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reached the specified place; that he thought the fishing boat would reach late due to adverse weather; that he had returned to Udupi next day and waited at Udupi till 17-5-99 for message regarding boat; that in the morning of 17-5-99 he received a message that one fishing boat was beached in Taribagil near Honnavar; that fearing that his name would be exposed, he went to Mumbai on the same day. He has also stated that Mohandas of Bokkapatna, Mangalore looked after the repair work when the boat was in Cortaloim, Goa; that he (Mohandas) was also arranging men for loading and unloading smuggled goods; that as Sri Vinay Kumar insisted for change of ownership he called his friend Sri Prem Ram Advani to Mangalore on 23-6-98 and transferred the ownership to Sri Advani at Honnaver; that Sri Sanjeev had assured him if the ready-made garments reached Mumbai he would make arrangement for selling it for Rs. 28 lakhs; that the money collected for construction of temple was not diverted for smuggling or for boat M.F.V. Sai Sagar. Sri Divakar Shetty was arrested under Section 104 of the Customs Act, 1962 on 5-8-99 and was released same day on bail under bond as per the orders of the court. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w back showing higher value; that he did not know how export took place, who filed bills and who was the clearing agent; that Sri Sanjeev did all this work; that his work was only to bring the garments from Dubai and deliver at Mumbai; that Sri Sanjeev had told him that he would get Rs. 6 lakhs with boat expenses if he invested Rs. 8 lakhs; that Sri Sanjeev was to make arrangement for sale of the goods as soon as they reached Mumbai; that he did not know anything about export; that all these were done by Sri Sanjeev and that Sri Sanjeev had told that he would sell the goods at Rs. 28 lakhs; that Sri Sanjeev could give further details; that he believed Sri Sanjeev and ventured into this business. 22. Sri Divakar Shetty vide his letter dated 16-8-99 addressed to DRI, Mangalore, retracted his statements given above and stated that he had nothing to do either with the said fishing vessel or with the ready-made garments; that he was humiliated and threatened and was asked to sign certain papers; that he wrote the statements as provided by their script and after he wrote down the statement, the script prepared by them was destroyed; that the statements were prepared by the DRI officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the operation very meticulously by changing the name of the vessel after departure from India in order not to leave any trail to investigation. From various statements it is evident that Sri Divakar Shetty is the actual owner of the vessel and he manipulated the registration documents to show that it belonged to somebody else. However, the plan for concealing evidence has not been successful for the reason that the name of the tindel and the details of the cargo are very clearly written in the export manifest and declaration filed at Hamria Port, which confirm the presence of the vessel at Dubai on the particular days. The specifications such as length, breadth, depth, engine capacity and brand name found on physical verification match with the corresponding details figuring in the sale deed of vessel M.F.V. Sai Sagar (for transfer of the vessel from the name of Sri Vinay Kumar to Sri Prem Ram Advani). It is also proved clearly by the documents obtained through Consulate General of India, Dubai i.e., export manifest and export declaration that there were 294 bundles of ready-made garments ie, men s shirts which was also confirmed by tindel Sri George Podikunju in his voluntary s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... galore in January 1999. This was also corroborated by the statement dated 21-5-99 of Sri George Podikunju who had also stated that one more consignment of 100 diesel engines had been landed during October 1998 from the vessel Sai Sagar at Kasarkod, Honnavar and that Divakar Shetty would be aware of the details and that for successful smuggling of diesel engines he was getting Rs. 50,000/- per trip. Therefore, it is evident that Sri Divakar Shetty was habitually smuggling contraband. He rendered goods of value Rs. 37.4 lakhs (value of 294 bundles of garments @ Rs. 10,000/- per bundle and the value of Sai Sagar realized by the department on sale, Rs. 8 lakhs). In the case of Addl. Collector of Customs, Calcutta v. Sitaram Aggarwala reported in 1999 (110) E.L.T. 185 (S.C.), Apex Court held that Section 167(8) of Sea Customs Act, 1878, corresponding to Section 112 of Customs Act, 1962, is a penal Section, the object of which is not only to prevent the evasion of payment of duties but also to prevent smuggling of goods resulting in the depletion of foreign exchange and jeopardizing the economic stability of the country. For that purpose it has to be given an interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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