Jorabhai Valabhai Rabari Desai Vs C.C. Ahmedabad (CESTAT Ahmedabad)
Shri Jorabhai Valabhai Rabari @ Desai and Shri Premabhai Jethabhai Attya @ Patel (hereinafter referred to as ‘the Appellants‘) have filed Appeals against the impugned O-I-O NO. AHM-CUSTM-OOO-COM-004-2018-19 dated 25-04-2018 issued by the Principal Commissioner of Customs, Ahmedabad wherein a Penalty u/s 112(b) of Customs Act 1962 of Rs. 17,01,313/-[each]is imposed on Appellants Shri Jorabhai and Shri Premabhai.
2. Brief facts of the case of Revenue are that the officers of DRI acting on a specific information, intercepted Appellants Shri Jorabhai and Shri Premabhai on 22.4.2011 at Surat and recovered 48637.525 carats of Rough Diamonds of Zimbabwe origin valued at Rs. 10,16,68,077/- (market value). There was no duty on Import of Rough Diamonds. However, import of Rough Diamonds were restricted and its import should be accompanied by Kimberley Process Certificate. The Kimberley Process Certificate identifies a shipment of Rough Diamonds in compliance with requirements of the law. Since Appellants were not having KPCs, Rough Diamonds were seized by DRI officers. After investigation, SCN dated 10.10.2011 was issued proposing confiscation of the seized Rough Diamonds and proposing imposition of penalties u/s 112(b) of Customs Act 1962 on Appellants Jorabhai, Premabhai and others including shri Narendra Raval, owner-cum-supplier of seized Rough Diamonds. Vide O-I-O No. 18/COMMR/2012 dt. 02-11-2012 by Commissioner of Customs, Ahmedabad had ordered absolute confiscation of the seized Diamonds wt. 48,637.525 carats valued at Rs. 10,16,68,077/-, u/s 111(d), 111(l) and 111(m) of Customs Act, 1962 and had imposed Penalty of Rs. 1,00,00,000/- (each) on S/shri Jorabhai, Premabhai and Narendra Raval for offence in connection with diamonds seized on 22-042011. Aggrieved by penalty imposed, These appellants had filed Appeal Nos No. C/10191/2013 AND 10192/2013-DB, wherein as directed in Stay Order No. M/10979 & 19780/WZB/AHD/2013 dt. 25-02-2013, these appellants deposited Rs 7,50,000/- [each] and compliance to Stay Order was submitted. This Tribunal vide Order No. A/10497-10498/2016 dated 17-05-2016have ordered that “on the basis of the value fixed by the experts, and the role of the appellants, the quantum of penalty should be re-quantified”. In fresh proceedings, seized rough diamonds were revalued at Rs. 1,70,01,313/-and vide O-I-O NO. AHM-CUSTM-OOO-COM-004-2018-19 dated 25-04-2018 issued by the Principal Commissioner of Customs, Ahmedabad, the seized rough diamonds are confiscated absolutely and a Penalty u/s 112(b) of Customs Act 1962 of Rs. 17,01,313/- eachhas been imposed on these 2 Appellants. Hence, Appellants are before this Tribunal against penalty. Appeal Nos C/12103/2018-SM and C/12104/2018-SM were taken up for regular virtual hearing on 15-04-2021 for final disposal of the Appeals.
3. Shri P. P. Jadeja, Learned Counsel appearing on behalf of Appellants, while reiterating grounds of Appeal and submissions in synopsis and made during PH argued that the Hon‟ble Tribunal had directed to quantify penalty, on two factors (1) Revaluation of seized diamonds (2) Re-quantify penalty considering “Role of the Appellants”. He argued that the Penalty of Rs. 17,01,313/-imposed on Appellants is not Re-quantified as directed by Hon’ble Tribunal. Such penalty deserves to be set aside or Re-quantified for reasonable, just and fair reduction on these 2 Appellants. He argued that such heavy penalty of Rs. 17,01,313/- imposed on individual Appellant is not commensurate with role in this case. He argued that there is no case for imposing penalty on Appellants, who have not smuggled rough diamonds and the same were not recovered from them. Appellants have no criminal background and except this case, they are not found involved in criminal activity including the case under Customs Act 1962. Appellants have not smuggled seized diamonds in India and they have no connection with confiscated diamonds and therefore penalty imposed upon Appellants is very harsh. Appellant has not challenged valuation of goods or claimed ownership or possession of the seized & confiscated Rough Diamonds. The penalty imposed on Appellants deserves to be set aside or reduced leniently. He submitted that since Penalty was to be re-quantified on the basis of “Role of the Appellants”, he requested to look at the factual details of case from beginning of case i.e. from 22-04-2011.
4. Shri Sanjiv Kinker, Superintendent(AR), Authorized Representative, appearing on behalf of the Revenue reiterated findings of the adjudicating authority and has submitted that arguments by Appellants are untenable and accordingly their Appeals may be rejected. He has also filed written submission in order to object the Appeals filed by Appellants and has contended that since Tribunal’s Order dt. 17-05-2016 has attained finality, it is not open for Appellants to argue on facts of case and against penalty. Statements of Appellant though retracted are valid and supported by other evidences referred to in Para 7 of Tribunal’s order dated 17-052016 and entire penalty imposed on Appellants cannot be set aside.
5. Heard both the sides and perused records. I find that seized rough diamonds weighing 48,637.525 carats were valued at Rs 10,16,68,077/- at the time of seizure on 22-04-2011. Inculpatory statements of Appellants were recorded on 22-04-2011, which were retracted on 23-04-2011, when Appellants were produced before judicial Magistrate after their arrest. SCN was issued on 10.10.2011 to Appellants Mr Jorabhai and Mr Premabhai as well as to Mr Narendra Raval, proposing confiscation of Rough Diamonds and imposition of penalties. Appellants have pleaded that they are falsely implicated; that their statements recorded were not voluntary and were recorded under the threat & force. Cross examination of one of the Panch was allowed who clarified that he had not seen any recovery of diamonds from Appellants and bag from which diamonds were recovered was lying in DRI Office. Cross examination of one of the officers was allowed, who has deposed that Appellants had themselves slept in DRI office in the night of 22-04-2011. SCN was decided by O-I-O No. 18/Commr/DRI/2012 dated 31.10.2012 by Commissioner of Customs, Ahmedabad with the following Orders :-
