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TMI Blog2016 (10) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs Act to foreign citizen and to territory beyond India - Held that: - the issue is academic. The decision in the case of C.K. Kunhammed vs. CC [1992 (3) TMI 199 - CEGAT, MADRAS] would apply. Imposition of penalty set aside - appeal allowed - decided in favor of appellant. - C/13694/2014 - A/10455/2016 - Dated:- 17-5-2016 - Dr. D.M. Misra, Member (Judicial) and Mr. P.M. Saleem, Member (Technical) For Appellant (s) : Shri S.P. Mathew Ajay Singh, Advocates For Respondent (s) : Shri Jeetesh Nagori, Authorised Representative ORDER The appellant herein Shri Narendra Raval has filed this appeal, aggrieved by the impugned Order-in-Original dated 11.08.2014 of the Commissioner of Customs, Ahmedabad wherein a penalty of Rs. One Crore was imposed on him, under Section 112(a) of Customs Act, 1962. 2. The relevant facts of the case, in brief, are that officers of DRI intercepted two persons namely Shri Jorabhai Valabhai Rabari alias Desai (Jorabhai for short) and Shri Premabhai Jethabhai Patel alias Attaya (Premabhai for short) on 22.04.2011 at Surat and recovered 48637.525 carats of Rough Diamonds of Zimbabwe origin, valued at ₹ 10,16,68,077/. Imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... largest steel and cement manufacturers of Africa. He provides free accommodation and food to the people coming from India, especially from Gujarat, as a part of various philanthropic work he undertakes. Shri Jorabhai and Shri Premabhai had visited Nairobi and had stayed in his guest house and he had met them. More than that, he has no connection with them or any business with them. The learned Counsel submits that the name of Shri Narendra Raval was taken by Shri Jorabhai and Shri Premabhai simply because his name is well known, and as a red herring. He contends that the department in the show cause notice has based the allegations against Shri Narendra Raval on flimsy evidences such as the initial statements of Shri Jorabhai and Shri Premabhai recorded on 22.4.2011 (which was retracted by them on first opportunity itself), and the call record between Shri Jorabahi/ Shri Premabhai with Shri Narendra Raval. He submits that Shri Jorabhai and Premabhai had in their written submission before the Chief Judicial Magistrate on the first available opportunity on 26.04.2011, stated that the statements were recorded by the officers by force and they had retracted their said statements. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2009 (233) ELT 157 (SC) et all. He also argued that Shri Narendra Raval is a Kenyan citizen and is resident at Nairobi, and hence no penalty is imposable on him as per the provisions of Customs Act which has jurisdiction within the territory of India only. In this regard, he relied upon the decisions in the cases of C.K. Kunhammed vs. CCE Cus. - 1992 (62) ELT 146 (Tri.), Shafeek P.K. vs. CC, Cochin - 2015 (325) ELT 199 (Tri.) etc. The learned Counsel also filed written submissions alongwith compilation of case laws. 5. On the other hand, learned Authorised Representative for Revenue reiterates the findings of the adjudicating authority and submits that Shri Jorabhai and Shri Premabhai at the time of seizure of rough diamonds named Shri Narendra Raval as the owner of seized goods as recorded in their statements dated 22.4.2011. He submits that the statements were recorded under Section 108 of the Customs Act, 1962 and have evidentiary value and the subsequent retraction does not nullify the same. As regards the jurisdiction of Customs Act to foreign citizens, he relied upon the observations of Member (Technical) in the case of Hi Lingos Company Limited vs. Collector of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11, Shri Narendra Raval was present. However, this deposition by them has been proved to be factually incorrect as the Passport entries and the certificate given by the Assistant Commissioner (Head of Investigation) Union Republic of Tanzania establishes that Shri Narendra Raval was out of Kenya from 23.03.2011 to 27.03.2011. Hence this evidence cannot be relied upon. (c) Shri Jorabhai and Shri Premabhai, on being asked by the officers in the presence of Panchas at the time of interception and seizure of the subject Rough Diamonds, stated that they have no invoice and other documents and K.P. Certificate for the said rough diamonds and the same were brought concealed in their bags on 12.4.2011 while coming from Nairobi to Bombay through Mumbai Airport without declaring the same at the Airport. The averments by Shri Jorabhai and Shri Premabhai are recorded in detail in the Panchnama dated 22.4.2011. However, there is no mention in the Panchnama as to whom the rough diamonds belonged to. A perusal of the statement of Shri Jorabhai dated 22.04.2011 shows that in the statement of Shri Jorabhai, there is no mention of Shri Narendra Raval. However, the statement of Shri Premabhai date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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