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TMI Blog2015 (9) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... ory notification, we find merit in the ground that an option to redeem them on payment of fine in lieu of confiscation was mandatory. However, after conclusion of the hearing, on instructions, advocate for Ms. Kanchna informed that now she will not avail the option of redemption even if granted. Therefore, we are not interfering with the order of absolute confiscation. Since the courier parcel was in the name of his sister, considering the gravity and penal consequences and due to natural love and affection he initially accepted under pressure the ownership and importation of the seized courier parcel. He categorically stated that he was not concerned with the seized goods and as such he was not opposing the confiscation of the seized goods. However, he strongly opposed imposition of any penalty whatsoever on him under the provisions of the Customs Act, 1962. However, adjudication qua him was not completed with five weeks and thereafter he filed application for settlement as co-applicant, which was dismissed. No admission was made by these brothers even before the Settlement Commission. It is seen that his subsequent statements, which were also recorded under section 108, do not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready imposed upon him. Another Appeal filed by him challenges the aforesaid Order-in-Original dated 28.3.2013 passed under erroneous assumption that no appeal was preferred against Order dated 22.11.2005 by him and thereby confirming penalty of ₹ 5 lacs on him. 4. In the earlier round, Appeals filed by said Ms. Kanchna and Nilesh B. Patel against the Order-in-Original dated 22.11.2005 imposing on them penalties of ₹ 1 Lac and ₹ 2 Lacs respectively, were allowed by way of remand by Tribunal. Thereafter, the impugned Order-in-Original dated 28.3.2013 is passed in de-novo adjudication. 5. We have carefully considered the rival submissions and the available records. The Ld. DR has supported the impugned Orders and submitted that the Appeals are liable to be dismissed by taking us through the findings recorded against the Appellants. He submitted that no case for either setting aside absolute confiscation or for setting aside or reducing penalty was made out by any of the Appellants. 6. The facts leading to issuance of show cause notice are as follows- (i) On 12.04.2005, Officers of Customs found in the import courier packages brought for clearance by M/s. Jeena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diamonds were not called for by him. He did not know who were Som, Pannifer and Ms. Kanchana. He did not call for any diamonds and came to know about it only after getting the summons in his sister's name. He did not have contact with any person named Jadhav for helping him in his business. He did not make any calls to M/s. Fedex about anything for the delivery of the parcel under seizure, nor instructed anyone for the same. He did not misuse his sister's name for getting diamonds illegally. He did not give any instructions to Fedex for delivery of the seized parcel. He did not know the inter-relationship of Som, Pannifer or M/s. Bhargav Gems. His brother did not send parcels in his sister's name at Mumbai address. Neither he, nor his sister was telling lies about the parcel under seizure. His sister was not connected with the parcels and he did not know why the parcels were sent in her name. He stated that he was not aware of any such parcel's arrival and hence there was no question of his calling Fedex and giving any instruction regarding its delivery. He did not know Thai language and was not aware as to why such book was sent in the seized parcel. His company n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for filing appeal against the impugned order. 20.07.06 By an order passed by the Hon'ble Bombay High Court in writ petition no., 821 of 2006 filed by the respondent, further proceedings in the settlement application filed by the applicant, came to be stayed. Whereas the impugned order claims that goods were not dutiable, before the Hon'ble High Court the department claimed that duty leviable would be 1.58 lakhs. 07.11.07 During the pendency of this stay order by the Hon'ble Bombay High Court vide ex-parte final order passed by the Settlement Commission, the application filed by the applicant was rejected interalia for the reason that the SCN has been adjudicated by the competent authority on a specific direction to do so by the Hon'ble Bombay High Court, and no case is pending before any proper officer and hence the application merits rejection. The applicant was unaware about this order till 18.3.2010. 12.01.10 Ultimately the writ petition no. 821 of 2006 filed by the respondent came to be dismissed for want of prosecution as the applicant was represented by her advocate. 08.02.10 Vide letter dated 06.02.2010 the advocate for the applicant informed the Sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brother and other family members in India; that she could have even collected the same at the office of the courier company itself that cut and polished diamonds seized by the department are not prohibited goods, for the purpose of importation into India that she is the owner of the seized diamonds, and is claiming the release of the diamonds, by accepting her true duty liability; that it was the first courier consignment sent by her; that she is not a habitual offender and she will never indulge in such fraudulent practice in future; that she further prays that the said diamonds may kindly be released to her on a nominal redemption fine and leviable Customs duty." 9. It is also a matter of record that Ms Kanchna had earlier filed an application for settlement seeking immunities from imposition of any penalty or fine, and from prosecution by admitting her duty liability of ₹ 2,11,415/- towards these seized goods before the Settlement Commission. This application is duly notarized. In this application she states that- "The facts leading to the filing of present Application are as mentioned hereunder:- 1. One Courier parcel was sent by me, vide Fedex flight No. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I knew them. 10. I say that I could have collected the parcel through "Mr. Jimmy" immediately upon delivery of the parcel at their residence, or could have even collected the same at the office of the courier company itself. 11. Vide this letter dated 26-09-2005, I categorically informed the officers of the Customs department that it was the first courier consignment sent by me, 12. A Show Cause Notice bearing F. No. SD/INT/AIU/UNI-2/2005/STF dated 29/09/2005 has been received by me. The said Show Cause Notice is not annexed and marked as Exhibit - 'B' is a copy of the Show Cause Notice bearing F. No. SD/INT/AIU/UNI-2/2005/STF dated 29/09/2005. 13. The imported diamonds have not been released, till the filing of the present Application, and continue to remain in seizure, since filing of the Bill of Entry no. 001330 dated 12-04-2005 filed by Jeena & Co. In form Courier Bill of Entry-III. 14. I say that I am owner of the seized diamonds and I am claiming the release of the diamonds, by accepting my true duty liability before this Hon'ble Commission. I say that I am not a habitual offender and I undertake that I will never indulge in such fraudulent pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Madras High Court in T Elavarasan, 2011 (266) ELT 167 (MAD HC), was pleased to rely on the said judgment of Hon'ble Andhra Pradesh High Court and held that an option has to be given to the petitioner to pay the applicable customs duty and the redemption fine and to get the gold jewellery released, as per Section 125 of the Customs Act, 1962. A larger Bench of this Tribunal in Peringatil Hamza vs. CC Airport, Mumbai - Appeal No. C/65/08 vide order dated 23.6.2014 in Appeal No. C/65/08-MUM held that currency beyond permissible limit are prohibited goods, however, without these binding precedents in the context of section125 were not brought to notice of the larger bench. Further, in Asian Food Industries, 2006 (204) ELT 8 (SC), the Hon'ble Apex Court inter alia observed that the meaning of word 'prohibited' will have to be construed in regard to the text and context in which it is used and the words prohibition, restriction and regulation are meant to be applied differently. Most importantly, the section 2(33), which is reproduced hereinafter, is with a rider ' unless the context otherwise requires '- "2. Definitions - In this Act, unless t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpressly prohibited under Section11 of the Customs Act, 1962 or by any other statutory notification, we find merit in the ground that an option to redeem them on payment of fine in lieu of confiscation was mandatory. However, after conclusion of the hearing, on instructions, advocate for Ms. Kanchna informed that now she will not avail the option of redemption even if granted. Therefore, we are not interfering with the order of absolute confiscation. 12. Now, so far as Bhargava Patel and Nilesh Patel are concerned, it is seen that Bhargav B. Patel had filed Criminal Writ Petition No. 2478 of 2005 before the Hon'ble Bombay High Court seeking directions to complete the adjudication proceedings expeditiously. The Hon'ble Bombay High Court by order dated 14-10-2005 was pleased to direct the adjudicating authority to hear him in the adjudication proceedings and to dispose of the same qua him within a period of five weeks. In his Preliminary Reply to Show Cause Notice dated 29.9.2005 Bhargava Patel denied having any concern with the seized parcel In this reply he stated that since the courier parcel was in the name of his sister, considering the gravity and penal consequences an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute on the fact that the parcel from which the diamonds under seizure were recovered was booked in the name of his sister Smt. Shilpaben without her knowledge, and was sent from Bangkok by Ms. Kanchana. Ms. Kanchana admitted in her Settlement Application that she could not even inform the Mr. Bhargav Patel or Mr. Nilesh B. Patel about having sent the parcel by courier which contained diamonds. The adjudicating authority has recorded that Ms. Kanchana appears to have been pressurized to file an affidavit giving untenable grounds such as non dutiability of the seized diamonds and conflicting reasons for sending concealed diamonds for collection by Jimmy who was not even known to Shri Bhargav Patel or his parents in India. We find that on the contrary she admitted her duty liability not only before Settlement Commission but also during the adjudication proceedings. There is no cogent evidence to show that she was so pressurized and this finding is based only on suspicion. There is no document or material or circumstantial evidence showing that Bhargava Patel had placed any order either verbal or written, or made compensatory payment, for the seized diamonds. In view of the above, we f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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