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TMI Blog1999 (11) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Subsequently, the department filed two more applications on 13.1.1999 and registered as appeals C/14/99 and C/15/99 specifically with regard to Anil Bachani and Raju Jain. The contention is that these two applications have been filed beyond three months which is specified in Section 129D of the Act for filing an application from the date of the Board's directions to the Commissioner. There being no provision to condone this delay, these applications are barred by limitation. Advocates for the respondents relied upon the order of this Tribunal in Bank of Madura Ltd. v. Commissioner of Customs (Order No. 3908-11/97-WRB dated 23.9.1997) in support of their assertion. 3. The departmental representative contended that the first application (C/809/98) was within time. It contained the names of all the three respondents and contained separate grounds related to each of them. The later two applications therefore, he says, were filed as a matter of abundant caution and they are not necessary. He also says that the reliance upon the order of this Tribunal by the respondents was misplaced. In that order, the fact was that initially the application filed by the Commissioner did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MV Pravidinsk, describing them as a fat woman and a thin woman. The gold was to be given to Mukesh who would send him US $ 12000 with Ramesh. Based on this statement and statements of other persons such as the employees of Royal Gems, notices were issued proposing confiscation of the gold, the ship and penalty under Section 112(a) on the two Russian women, Lalit Jain and Raju Jain and the two Bachanis. 7. In his order, the Commissioner found that there was no case for imposition of penalty on Udusheva Anna. He found that she merely accompanied the other woman Afanas Yeva Natalia without being aware that she was carrying gold which was smuggled. He imposed a penalty on Raju Jain, whom he found was under employed youth who had no knowledge that the gold in question was contraband. The Commissioner declined to accept the statement of Anil Bachani and Ramesh Bachani, to be voluntary. He noted that they were retracted by the next day, on the ground that they were obtained under duress. He found this claim to be correct on the basis of evidence which showed that Anil Bachani has been subjected to durests by the officers of the Directorate of Revenue Intelligence (DRI). He did not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which would render any of them not worthy of credence, which he details. 10. It is not necessary for us to record the details of the contradictions that are pointed out. The department, in its application, does not question the view of the Commissioner that the statements of Bachanis, father and son, are not to be relied upon, for the reason that they have been shown to be recorded under duress. What now has to be considered is, whether the grounds in the department's application are to be accepted so as to show that the Commissioner's order is not proper or legal. 11. The first ground is that the fact of delivery of gold in the office of the Raj Gem having been established, it must follow that the Bachanis are involved. The reason is that Sitaram, a low paid employee, would not have received such a large quantity of gold without the implied consent and direction of the Bachani family . It is stated that Bachani has deliberately suppressed the address of Sitaram, 12. The question that then arises is whether the department was dependent upon the willing co-operation of the Bachani family to complete its investigation against them, by implicating Sitaram. It is ax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, but, as we have noted, speculating on the possible role of Bachanis. It seeks to back up of such speculation by claiming without any evidence whatsoever that it is on record most of the people (presumably employees) of Raj Gems speak Russian and indulge in smuggling through Russian crew members. The department was not able to produce any such records. The contention that the financial benefit available to the Bachanis would have come to light if Mukesh, Sitaram or Anil have been apprehended by the DRI, invites a question as to why they have not been apprehended, again apart from being speculative in nature. 16. The statement that the results on the investigation discussed in the notice points towards Bachanis and their guilty minds is too general to be accepted. The Commissioner has given detailed reasons for his view including the contradictions that are referred to by their advocate. We are not impelled to accept the broad, general unsupported statement concluding the recitation of allegation clearly either speculative or unsupported by evidence to overturn his conclusion. 17. The application with regard to Raju Jain contends that he had admitted that he was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (a) of Section 112 explicitly with regard to Raju Jain, Ramesh and Anil Bachani. The Commissioner's application also refers to this clause. If, indeed, this was an error, presumably made by the Board and carried through by the Commissioner, it ought to have been corrected. We cannot, at this stage, accept this plea. 22. Clause (a) of Section 112 of the Act will not apply either to Anil Bachani, Ramesh Bachani or Raju Jain. It would only apply to the persons who imported the gold. The notice to show cause does not cite Clause (a) of Section 112 with regard to these three but to Clause (b). The departmental representative does not dispute that penalty could not be levied on these persons under Clause (a) of Section 112. Accordingly, it will have to be held that the application with regard to Raju Jain fails on this score. 23. The departmental representative says that he has been instructed to pray for an order for holding that the ship on which the gold was smuggled, was liable to confiscation. He says that the application for early hearing refers to this issue. That may be so. In the total absence of any material in the application with regard to confiscation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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