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TMI Blog2011 (6) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... rted' is an independent leg of clause (d). The adjudicating authority has to determine whether the diamonds were 'attempted to be exported contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force. appeals allowed by way of remand - C/167 & 304/11 - A/288-289-WZB/C-I(CSTB) - Dated:- 24-6-2011 - SHRI P.G. CHACKO, SHRI SAHAB SINGH, JJ. Appearance: Shri S.S. Sekhon with Shri R.D. Wagley Shri B.P. Pereira, Advocate JDR for Appellant No. 1 for Appellant No. 2 Shri B.P. Pereira JDR for Respondent No. 1 Per: P.G. Chacko These appeals are directed against the Commissioner's order confiscating diamonds under Section 113 of the Customs Act, 1962 with option for redemption by M/s DHL Express (India) Pvt. Ltd. (one of the respondents in the Revenue's appeal) on payment of fine of Rs.30 lakhs and imposing a penalty of Rs.30 lakhs on Shri Perez Hender Valmore (another respondent in the Revenue's appeal) under Section 114 of the Act. 2. 616.547 carats of cut and polished diamonds valued at Rs.2,85,24,926/- had been seized by the officers of the Directorate of Revenue Intelligence (DRI) from the possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, a show-cause notice was issued by the DRI alleging that the diamonds had been attempted to be exported illegally and hence liable to confiscation under Section 113(d), (e) (i) of the Customs Act read with relevant provisions of the Foreign Trade (Development and Regulation) Act/Rules and that the noticees were liable to be penalized under Section 114 of the Act. Shri Perez Hender Valmore did not respond to the show-cause notice. M/s Dalumi Diamonds, in their reply to the show-cause notice, claimed ownership over the diamonds and prayed for permission to redeem the same. It was in adjudication to this dispute that the Commissioner passed the impugned order. 3. As already indicated, one of the appeals is by the Revenue, wherein the limited challenge is in relation to the learned Commissioner's decision to give option for redemption of the diamonds to the courier. The appellant submits that the Commissioner ought not to have given the option to DHL to redeem the diamonds without waiting for the decision of the Criminal Court which was already seized of the case relating to ownership of diamonds. It is submitted that the option given to the courier to redeem the goods is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigating Officer and 619 carats laying with DRI (Directorate of Revenue Intelligence) shall be returned to the complainant Guy Yehskil Yas." It appears from the records that Mr. Guy Yehskil Yas is Asia Sales Manager of M/s Dalumi Hong Kong Ltd. Learned Counsel points out that the judgment passed by the learned Additional Chief Metropolitan Magistrate under Section 265F of the Cr.P.C. is final as per Section 265G of the Cr.P.C. subject to Articles 136, 226 and 227 of the Constitution of India. Learned JDR acknowledges the fact that the diamonds in question have been directed by the Criminal Court to be released to M/s Dalumi Hong Kong Ltd. It would, therefore, appear that the first issue framed by us (relating to ownership of the goods) does not survive. 8. The question, now, is whether the diamonds confiscated by the learned Commissioner and offered for redemption by the Courier were liable to confiscation under Section 113 of the Customs Act. If the diamonds are held so liable, the owner can redeem the same subject to the provisions of Section 125 of the Customs Act. Otherwise, the diamonds should be unconditionally released to the owner. 9. Learned Counsel has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e given careful consideration to the submissions. It cannot be denied that the declaration of Shri Valmore was filed with the Courier under Regulation 4(2) ibid. The regulations were promulgated by the CBEC under Section 157 of the Customs Act, 1962. The filing of the declaration is, therefore, to be recognized as an act done for a statutory purpose. At this juncture, we have got to examine the statement given by an employee of the Courier (statement dated 8.9.2010), wherein he stated inter alia that, when he realized that he had not checked the parcel properly, he contacted his Manager and informed him that a parcel was booked by a person of foreign origin and that he had only his hotel address. He further stated that he was, thereupon, asked by the Manager to do 'profile manifesting of the shipment', which he did. Learned Counsel has placed much significance on this part of the statement of the Courier's employee. According to him, this statement would indicate that the Courier did not want to proceed with the dispatch immediately. In other words, no attempt to export the goods can be alleged against the Courier. However, Counsel himself would confess that he does not know what ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y prohibition imposed by or under the Customs Act or any other law for the time being in force.' 14. If, upon proper application of mind to the facts of the case and the evidence on record, the learned Commissioner finds that the Courier did not make any attempt to export the goods as agent of the consignor, the goods cannot be confiscated and will be liable to be released unconditionally to the owner. On the other hand, if it is found that there was an attempt by the Courier as agent of the consignor to export the goods, clause (d) of Section 113 of the Act would get attracted. However, option for redemption of the goods is liable to be given to the owner under Section 125 of the Customs Act in lieu of confiscation, particularly as the Criminal Court has ordered release of the goods to a functionary of Dalumi Hong Kong Ltd. In our view, the Criminal Court's direction to release the goods to the owner will not preclude the Commissioner functioning under the Customs Act from imposing the condition as to redemption fine. 15. The request of M/s Dalumi Hong Kong Ltd. for re-export of the goods in terms of the relevant Notification is also liable to be considered by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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