1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION FERA APPEAL NO.34 OF 2009 WITH CIVIL APPLICATION NO.23 OF 2009 Kaushik K. Kanakia, residing at 321-E, Uttam Villa, Dr.Ambedkar Road, Matunga, Mumbai 400 019. ...Appellant. v. The Special Director of Enforcement Enforcement Directorate, having his office at Janmabhoomi chambers, 1st floor, Walchand Hirachand Marg, Mumbai 400 001 ...Respondent. AND FERA APPEAL NO.35 OF 2009 WITH CIVIL APPLICATION NO.24 OF 2009 Mahesh Kanakia residing at 8, Ashirwad Suvarna Nagar Society, N.S.Road, 4 Ville Parle (W), Mumbai 400 056. ...Appellant. V The Special Director of Enforcement Enforcement Directorate, having his office at Janmabhoomi chambers, 1st floor, Walchand Hirachand Marg, Mumbai 400 001 ...Respondent. Mr.Anil Balani, adv. For the Appellants. Mr. A.S.Rao with Mr.Y.R.Mishra i/by H.P.Chaturvedi, advs. For the Respondent. 2 CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATED : 18TH JUNE, 2009 ORDER- P.C. 1 Both these appeals may be disposed off by the common order as the appeals filed by the present appellants and some other persons before the Appellate Tribunal were disposed off by the common order dated 17th February, 2009. 2 To state in brief, it is the case of Revenue that one Suresh Seth imported the LCD watch modules from Hongkong in the name of three dummy firms namely, M/s. Shree Venkateshwara Plastic Products (In brief ‘SVPP’), M/s. Sunshine Enterprises and M/s. Swiss Cross during the year 1993. The present appellants, who were partners of M/s. National Transport, the Clearing House Agent, had helped said Suresh Seth in clearing the subject goods and they had explained the whole procedure to the proprietors of the above referred three firms, who had only lent their names for import on getting commission at the rate of 5% of the imports. One Naresh Sukhwani was the brother of the overseas supplier Kenny Sukhwani and he had allowed storage of goods imported by Suresh Seth and also made payment of the custom duty on 3 the said goods to facilitate the clearance. The inquiries by Directorate of Revenue Intelligence (DRI) revealed that as per declaration before the Hongkong Customs authorities, the total CIF of the consignment imported in the name of M/s. SVPP was HK$ 47,80,173.90 while value declared before the Customs Authorities in India was HK$ 8,76,400. Similarly, the correct CIF of the goods imported in the name of M/s. Swiss Cross, Vapi was HK$ 72,44,686.10 but the CIF declared before the Customs Authorities in India was HK$ 13,16,175. The correct CIF of their consignments imported in the name of M/s. Sunshine Enterprises, Hyderabad was HK$ 7,50,623.73 but it was declared to be HK$ 1,32,250 before the Customs Authorities in India. Thus, all these consignments were under invoiced and naturally the difference must have been paid in the foreign currency to the exporter, for which no permission was obtained from the Reserve Bank of India. 3 In respect of each of these consignments Show Cause Notices (SCN) I, II and III were issued to all the concerned and after recording the statements of all the concerned and perusal of the documents, adjudicating authority held the present appellants to have contravened the provisions of Section 8(1) of FERA in respect of each of the consignments by abetting Suresh Seth and his other companions 4 in importing by under invoicing. In SCN I, both these appellants were imposed penalty of Rs.25,000/- each. In SCN II, penalty of Rs.1,25,000/- was imposed on each of the appellants. In SCN III , penalty of Rs.2 lac was imposed on each of the appellants. Other persons involved in the said show-cause notices were also awarded different penalties. 4 The appellants preferred appeal nos.132 of 2003 and 133 of 2003 before the Appellate Tribunal challenging the order of the adjudicating authority. Appeals came to be dismissed. Hence, these appeals under Section 54 of the FERA. 5 Heard the learned counsel for the Parties. Perused the impugned orders as well as the relevant documents. Record reveals that Suresh Seth, who was real importer had taken help of the owners of three firms stated above. Statements of K.V.V. Raghavacharyulu , the proprietor of M/s. SVPP stated that Suresh Seth had taken him to the office of M/s. National Transport, CHA, where he met its partners Kaushik and Mahesh Kanakia. They explained him the detailed procedure of import of watch modules. According to him, the present appellants were aware that the goods were being fraudulently imported using the dummy firms. P.V.B. Chary, another partner of M/s. SVPP, stated that he had given blank letterhead to Suresh Seth at the instance of 5 Kaushik Kanakia and Suresh Seth and these documents were used for the purpose of imports. It appears that charges against M/s. National Transport in respect of imports by M/s. Sunshine Enterprises were dropped as the duty could not be demanded from CHA and there was no irregularity in respect of duty by CHA. On this ground, it was contended by the learned counsel for these appellants that the present appellants, who are the partners of that firm, also can not be held guilty. However, this contention came to be rejected by the Appellate Tribunal holding that the role played by them in their personal capacity is different from that of CHA. After minutely considering the material on record, the Appellate Tribunal appears to have dismissed the appeals of the present appellants. It was noted that in all 35 consignments for M/s. SVPP, 31 consignments for M/s. Swiss Cross and 7 consignments for M/s. Sunshine Enterprises were cleared by the present appellants and they had helped Suresh Seth in importing the goods using the names of dummy firms. 6 The present appeals are against the concurrent finding of the facts by both the authorities below. The appeal under Section 54 can be filed only if there is question of law. We do not find any substantial question of law involved in the present appeals. 6 7 Therefore, both the appeals stand dismissed. 8 As the appeals are dismissed, Civil Applications filed therein for stay of the impugned orders do not survive and in result, they also stand dismissed. (J.H. BHATIA,J.) (F.I. REBELLO,J.)