TMI Blog1993 (7) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... di, an employee of M/s. P.S. Bedi Co. in appeals filed against three orders in original bearing Nos. l/TVS/93, 2/TVS/93, 3/TVS/93 all dated 12-1-1993 under which the Collector of Customs (Judicial), New Delhi has imposed personal penalties on the company to the tune of Rs. 1 lakh, Rs. 2 lakh and Rs. 1 lakh and on Shri R.S. Bedi Rs. 50,000/-, Rs. 1 lakh and Rs. 50,000/- respectively for their alleged connivance in the undervaluation and mis-declaration in respect of the import of replacement parts by M/s. Mitsubishi Heavy Industries Ltd. who had been awarded contract for supply, transportation, customs and port clearances and erection of a National Power Project of National Thermal Power Corporation Ltd. at Auraiya, U.P. for which the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms clearance and forwarding; and the Appellants were engaged by M/s. ACKM only w.e.f. August, 1989 by which time 83% of the replacement parts had already been imported and clearances effected from 1988 till August, 1989 through Cargo and as hand carried items with Engineers and technicians of MHI with the concurrence of NTPC to save time. It was further stated that right from the start of supply of replacement parts, which were supplied free of charge and declared as having no commercial value on the invoices, the MHI had been following a consistent pattern of invoicing, and the appellants attended to Customs clearance of approximately 20 such cargo consignments of replacement parts which were on account of NTPC and the Bills of entry wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments tendered by the employees of MHI and ACKM had immediately been retracted. During the personal hearing granted by the Adjudicating authority, the appellants repeatedly requested for cross examination of the witnesses whose statements were being relied upon by the department. 3.2 The learned Counsel drew our attention to pages 8 to 28 of the appeal containing the gist of replies of MHI and ACKM, the said two companies clearly stated that neither M/s. P.S. Bedi Co. nor Shri R.S. Bedi had any part to play or knowledge in the activities of MHI as well as in preparation of invoices, signing of declarations by Mr. Katyal and preparation of other documents by MHI. Penalty has been imposed on the firm even though charges against its partne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that we got baggage appraised from Cargo complex with each card at 1000". He further stated that though this did not pertain to these show cause notices/cases it was evidence indicating connivance of M/s. P.S. Bedi and Co. He further stated that statement of Sh. Ashok Pithawala of 1st October and 10th October and Sh. Amrit Patel of 8th and 10 October revealed that there had been a meeting in September, 1989 which was attended by officials of MHI, ACKM and M/s. P.S. Bedi Co; where invoicing had been discussed and the CHA thus had knowledge of under-valuation. He also stated that as per statement of Sh. Amrit Patel dated 8-10-1990, the declarations signed by Sh. Katyal were on the directions of MHI but on suggestion to Sh. Amrit Patel gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice and in subsequent letters. The relevant extract from record of personal hearing held on 13-10-1992, is reproduced below - It was also argued that the statements recorded under section 108 in this case before issue of show cause notice should be treated as invalid in view of the Gujarat High Court decision in the case of Abdul Kadar etc. [1991 (55) E.L.T. 497]. Although this case may not have jurisdiction in this case, this can be treated as guidelines while deciding this issue, mainly because the statements have been recorded on the back of the clearing agent and they were not given any chance to cross-examine the persons who had given those statements. . 7. In the light of the above, we are unable to accept the plea of the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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