1 IN THE HIGH COURT OFJUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO. 31 OF 2009 CUSTOMS APPEAL NO. 31 OF 2009 CUSTOMS APPEAL NO. 31 OF 2009 Shri Baban Srikishan Tiwari/Sharma ) Indian inhabitant of Mumbai at 51-A, ) Pragati Industrial Estate, N.M. ) Joshi Marg, Lower Parel,Mumbai 400 011).. Appellant Vs. 1) Union of India through ) the Joint Secretary and Legal ) Advisor Ministry of Law & ) Justice, Aayakar Bhawan, ) M.K.Road, Mumbai 400 020. ) 2) Commissioner of Customs ) (Adjudication), New Customs ) House, 2nd floor, Ballard ) Estate, Mumbai 400 001. ).. Respondents Mr. H.R.Shetty i/b. H.R.Shetty & Co. for the appellant. Mr. R.V.Desai, Senior Counsel with Mr. R.B.Pardshi for the respondents. 2 CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND J.H.BHATIA,JJ. J.H.BHATIA,JJ. J.H.BHATIA,JJ. DATE: 28th April, 2009. DATE: 28th April, 2009. DATE: 28th April, 2009. JUDGMENT (PER J.H.BHATIA,J.) JUDGMENT (PER J.H.BHATIA,J.) JUDGMENT (PER J.H.BHATIA,J.) 1. Heard the learned Counsel for the parties. Perused the orders passed by the adjudicating officer as well as by the appellate Tribunal. 2. On perusal of the record, it appears that the present appellant - Baban Sharma and one Ranjeet Sanghvi used to import second-hand printing machines in the name of different parties under the "actual user" condition prescribed in the Import policy during the relevant period. However, having so imported such second-hand printing machines, they used to sell to different parties in violation of the said conditions and the import policy. Similarly, they had imported 16 multilith single colour second-hand printing machines from M/s. CJB Printing and Equipment, U.K. for and on behalf of M/s. Classic Pack owned by one Shailesh Mehta vide Bill of Entry no.1588 dated 15.11.1997. However, 3 all those machines were offloaded in the premises of the present appellant at 51A, Pragati Industrial Estate. N.M.Joshi Marg, Lower Parel, Mumbai. Later on, 11 of those 16 printing machines were found to have been stored in the premises of M/s. Fayyaz Binding works owned by Mohammed Illyas Qureshi. During the raid on the premises of M/s. Fayyaz Binding Works, in all 16 machines were found, out of which 11 were from the lot imported in the name of M/s. Classic Pack. Statements of Mohammed. Illyas Qureshi, Shailesh Mehta, Ranjeet Singhvi and the present appellant - Baban Sharma came to be recorded. As per statement of one K. Sampath Manager of M/s. Fayyaz Binding Works. 11 printing machines were stored in the premises of M/s. Fayyaz Binding Works by the present appellant Baban Sharma. That statement was corroborated by the panchnama drawn on 18.8.1999 in the premises of Fayyaz Binding Works. During the statement of Mohammed Illyas Qureshi recorded on 4.10.1999, he did not deny that said machines were kept in his premises by the present appellant. Statement of Shailesh Mehta, the proprietor of Classic Pack revealed that the present appellant and Ranjeet Singhvi had earlier also imported second-hand printing machines from U.K. The present appellant had told Shailesh Mehta that the machines could be imported under the "actual user" condition and if they would be sold in 4 the market, huge profit could be made. Shailesh Mehta stated that he had told the present appellant that he did not have money to import the goods and to this, the present appellant offered to arrange for finances for importing the machines, but Shailesh Mehta refused to import the machines. After that the present appellant offered a commission of Rs.1 lakh to Shailesh Mehta if he would have allowed the import of machinery in the name of m/s. Classic Pack. As per this offer, Shailesh Mehta was only to lend his name and all other works were to be done and finances were to be arranged by the present appellant and Ranjeet Singhvi. Due to this, Shailesh Mehta agreed. After that Ranjeet Singhvi handed over four cheques worth Rs.9.5 lakhs to Shailesh Mehta in the month of January, 1997. Those cheques purported to have been issued by M/s. Ambika Stone in favour of Classic Pack. Statement of Girish Naharmal Mehta also corroborated this part of the story. According to him, as per instructions from Ranjeet Singhvi, he had given the four cheques of Rs.9.5 lakhs in favour of M/s. Classic Pack to Ranjeet Singhvi. Ranjeet Singhvi stood as a guarantor for that amount to be given to M/s. Classic Pack. According to Shailesh Mehta, the appellant Baban Sharma and Ranjeet Singhvi had paid Rs.5 lakhs to him in cash for payment of customs duty and clearance charges on import of said 16 5 printing machines. They had obtained signatures of Shailesh Mehta on several documents for clearance of goods. As per his statement, after clearance of the goods, the present appellant and Ranjeet Singhvi took possession of the machinery and paid the amount of Rs.1 lakh to him as his commission and offloaded the machineries at the premises of the present appellant at Pragati Industrial Estate. Later on, when he visited the premises of M/s. Fayyaz Binding Works, he found that 11 of those printing machines imported in the name of M/s. Classic Pack were stored in the said premises of M/s. Fayyaz Binding Works. 3. In his statement, the appellant Baban Sharma had categorically admitted that he had imported about 100 second-hand printing machines in the names of 9 or 10 parties and they were sold away to different parties. He had also admitted that Ranjeet Singhvi was helping him in his business. Mohammed Illyas Qureshi also stated in his statement that the present appellant had kept the machines in his godown at Jacob Circle at the rent of Rs.10,000/- per month. In view of this material, collected during the investigation, the Commissioner of Customs - (Adjudication), while passing the order of confiscation of 11 printing machines, imposed penalty of Rs.1 lakh on Shailesh Mehta and 6 penalty of Rs.10 lakh each on the present appellant Baban Sharma and Ranjeet Singhvi under Section 112(a) and (b) of the Customs Act. The appeals preferred by the present appellant Baban Sharma, Ranjeet Singhvi against the pebnalty and by Mohammed Illyas Qureshi against confiscation and order of redemption of payment of penalty of Rs.3 lakhs came to be dismissed by the appellate Tribunal. The present appellant Baban Sharma has challenged the order of the said penalty and dismissal of his appeal by the CESTAT in the present appeal. 4. On perusal of the record and the material collected during the investigation, we find that there was sufficient material to show that the present appellant and Ranjeet Singhvi were the main players in the business of import of second-hand printing machines under the Scheme of "actual user" as per the Import Policy and they used to sell the said machines in violation of the "actual user" condition. The funds were provided by Ranjeet Singhvi. Ranjeet Singhvi and the present appellant had been to U.K. to arrange for the import of the machinery.. The material also reveals that Shailesh Mehta had only lent the name of his proprietory concern "M/s. Classic Pack" as he was offered commission of Rs. one lakh. His name was used 7 for the import, while the finances for the same were arranged by Ranjeet Singhvi. The present appellant managed the whole show by actually entering into contract of import with the vendor/exporter in U.K. and then arranging the clearance of the goods from the Customs. After he got the machinery cleared, he offloaded the same at his own premises. Later on, out of the 16 machines, 11 were found in the premises of M/s. Fayyaz Binding Works and there is sufficient material that the said machines were kept in the premises of M/s. Fayyaz Binding Works by the present appellant. It is impossible to believe that the present appellant was only the commission agent and that he had done all this, including visits to U.K. for arranging the imports, for a commission of mere Rs.50,000/-. It is also material to note that the present appellant had never retracted his confessional statement made before the authorities under Section 108 of the Customs Act. In view of this, it is difficult to find any fault with the concurrent findings of facts by the authorities below. In such circumstances, we do not find any question of law involved in the present appeal. Therefore, the appeal is liable to be dismissed. 5. For the aforesaid reasons, the Appeal stands dismissed. 8 (J.H.BHATIA,J.) (F.I.REBELLO,J.) (J.H.BHATIA,J.) (F.I.REBELLO,J.) (J.H.BHATIA,J.) (F.I.REBELLO,J.)