Shri Baban Srikrishan Tiwari / Sharma Vs Union of India through the Joint Secretary and Legal Advisor and Anr.

 IN THE HIGH COURT OFJUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION
CUSTOMS APPEAL NO. 31 OF 2009

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 Shri Baban Srikishan Tiwari/Sharma )

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 Indian inhabitant of Mumbai at 51-A, )
 Pragati Industrial Estate, N.M. )
 Joshi Marg, Lower Parel,Mumbai 400 011).. Appellant

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Vs.

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 1) Union of India through )
 the Joint Secretary and Legal )
 Advisor Ministry of Law & )
 Justice, Aayakar Bhawan, )
 M.K.Road, Mumbai 400 020. )

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 2) Commissioner of Customs )
 (Adjudication), New Customs )
 House, 2nd floor, Ballard )
 Estate, Mumbai 400 001. ).. Respondents

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 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.

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CORAM: F.I.REBELLO AND

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 J.H.BHATIA,JJ.

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 DATE: 28th April, 2009.

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 JUDGMENT (PER J.H.BHATIA,J.)

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 1. Heard the learned Counsel for the parties.
 Perused the orders passed by the adjudicating officer as
 well as by the appellate Tribunal.

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 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

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 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,

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 all those machines were offloaded in the premises of the

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 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.

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 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

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 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

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 printing machines. They had obtained signatures of

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 Shailesh Mehta on several documents for clearance of

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 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.

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 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

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 penalty of Rs.10 lakh each on the present appellant

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 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.

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 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

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 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

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 for the import, while the finances for the same were

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 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.

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 Therefore, the appeal is liable to be dismissed.

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 5. For the aforesaid reasons, the Appeal stands
 dismissed.

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(J.H.BHATIA,J.) (F.I.REBELLO,J.)

Shri Baban Srikrishan Tiwari / Sharma v. Union of India through the Joint Secretary and Legal Advisor and Anr.

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Shri Baban Srikrishan Tiwari / Sharma v. Union of India through the Joint Secretary and Legal Advisor and Anr.

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