LEMUIR EXPRESS AND ANR. Vs. CC, MUMBAI

JUDGEMENT

(1.) THE appellants herein are aggrieved by the orders of the Collector of Customs, Bombay imposing penalties on them for alleged manipulation of value in the Home Air Way Bill so as to aid the importers of consignments of rough uncut diamonds from USA in their attempt to import by over valuation of consignments, thereby attempting to remit excess amounts of foreign exchange. The details are as under:

(2.) FACTS in C/1849/93 -D and C/1760/94 -D

(3.) FROM the evidence on record, it is clear that Shri M.C. Vakharia was indulging in frauds connected with the invoice manipulation. He was the brain and finance behind the import deals in the name of Shri P.K. Kothari and Shri C.M. Seth and the adjudicating authority has, therefore, rightly held him responsible for omissions and commissions in connection with over invoicing of the imported rough diamonds covered in both consignments. M/s. P.K. Kothari & Co. and M/s. Chandrakant Mangaldas & Co. were clients of M/s. Lemuir Express in which Shri H.M. Thadani was the Chief Executive, Diamond Courier Division. It is contended by Shri Thadani that since both the above mentioned firms were regular clients, he had no reason to suspect that they were operating benami for Shri M.C. Vakharia. However, Shri Thadani has stated that soon after the receipt of the subject consignments, he sent cargo arrival notice to the importers and he was dealing with Shri Vakharia as the real consignee in the case, since neither Shri Kothari nor Shri C.N. Seth were anywhere in the picture. He has explained that he amended the value of the consignment in the original AWB only with the bona fide intention of quick completion of Customs formalities; however, in the normal course of business, the Manager of the Courier Agency should not correct the value of the consignment in the HAWB and by doing so that it is obvious that Shri Thadani went out of his way to help a client of his Agency to further the Agency's business interests. It is clear and not disputed that Shri Thadani had knowledge that the consignor in both cases was none other than Shri Deepak Vakharia, brother of Shri M.C. Vakharia. During the personal hearing before the adjudicating authority, Shri Thadani has admitted that he knew Shri Vakharia personally and used to deal with him frequently during the course of his business. This has not been disputed by Shri Thadani in the appeals filed before us. The plea of Shri Thadani that he acted in amending the value of the consignments due to ignorance, is not acceptable for the reason that he is an old hand in the business of forwarding imports and exports of diamonds and further he has manipulated the value in the HAWB for the same person viz. Shri M.C. Vakharia, in two consignments and his mala fide intention is further borne out by the fact that he had instructed the CHA not to disclose to the Customs, the corrections made by him in the HAWB. All this clearly indicates that he was withholding the information from the Customs authorities and seeking to conceal evidence against him and his client, Shri Vakharia. We, therefore, hold that Shri Thadani is liable to personal penalty. However, having regard to the totality of facts and circumstances of the case, we reduce the penalty imposed upon him in each adjudication order to Rs. 75,000/ - (total penalty is reduced to Rs. 1.5 lakhs).