TMI Blog2024 (3) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. However, the appellant has sought cross examination of a greater number of people, which is not justified. It is noted that neither the appellant nor the Director cooperated with the Department during investigations. They did not voluntarily come forward to assist the investigations to negate the allegations of the Department. It is brought on record that Shri Manish Suneja had actively connived with the appellant to divert the imported raw materials to the open market. We take note that the Revenue has investigated each consignment and has indicated as to how and where the said consignments were disposed off. This is corroborated by the statements recorded under section 108 of the Customs Act, 1962. Consequently, the findings in the impugned order that the impugned goods have not been delivered at the factory premises of the actual user as mentioned in the condition sheet of the Advance Authorization is upheld. The benefit of Notification 99/2009-Cus dt 11.09.2009 cannot be extended to the appellant in view of the overwhelming evidence of diversion of imported raw material to the open market - The contention of the appellant that the export obligation against the Advance autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the appeals before the Tribunal. 3. Learned Counsels appeared for Shri Ajay Kumar Goyal and Shri Pawan Kumar Seth and the learned Authorised Representative for the department. As no one has appeared for the appellant and Shri Rakesh Goyal, we proceed to decide the case based on the appeal memorandum. 4. We note that that the appellant, in the appeal memorandum has submitted that the export obligation of the Advance Authorisation had been duly discharged and the appellant had applied to DGFT for their EoDC. It has been also submitted that the adjudicating authority has not considered their defense nor any opportunity was provided to them to cross examine the persons whose statements had been relied upon. Consequently, there is violation of principles of natural justice. The Appeal memorandum has relied on the judgment of Supreme Court in the case of Andaman Timber Industries vs Commissioner of Central Excise, Kolkata II [2015 (324) ELT 641 (SC). And Civil Appeal No. 2216 /2000 Order dated 17.3.2005 [2005 (187) ELT A 33 (SC)]. It has been further submitted in the Appeal memorandum that cross examination was permitted of some of the witnesses relied on for the notice dated 01.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayed to be allowed. 5. Learned Authorised representative appearing for the department submitted that the impugned order had in detail discussed the modus operandi used by the appellant for diverting the imported goods into open market without using the same in export goods. The Authorized Representative of the Department has made the following submissions.: Diversion to Open market of live Bs/E:- The learned Authorized Representative submitted that the imported goods were diverted into open market, without using the same in export goods, as has been confirmed by the Joint Excise Taxation Commissioner (IT Enf), Himachal Pradesh, who vide his letter no. 2-5/2011-EXN-Comp.C-Barrier. Data-Vol-II-17940 dated 15- 06-2015 (which is RUD-84 to SCN dt.6-6-18) stated that no trucks loaded with the imported fabrics has ever crossed the border and never reached their declared manufacturing site at Plot No. 62, EPIP, Jharmajri, Baddi as per the condition sheet attached to the said Advance Authorization issued to the importer during the period 01-05-2013 to 31-12-2014. As regards the Live Bill of Entry No. 3404857 dated 30-09-2013, the learned Authorized Representative contended that on 05-10-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject goods had been delivered at Greater Kailash, Delhi and Karol Bagh, Delhi from the godown and place of M/s Rohit Cargo Movers. From the above, it is evident that these goods have not been delivered to the appellant s premises at Baddi (HP) which is the actual user factory. In view of the overwhelming evidence, he prayed that the appeal may be dismissed. 6. We have considered the submissions made by the Authorized Representative of the Department, and the learned counsels appearing for two co-noticees. At the outset we take note of the facts that no one appeared on behalf of the appellant and Sh Rakesh Goyal, Director of the appellant. However, Sh Ajay Kumar Goyal and Sh Pawan Kumar Seth were represented by their Counsels. It is also pertinent to note that the appellant and Shri Rakesh Goyal, Director of the appellant did not cooperate with the investigations, did not respond to summons, and also did not accept the summons for recording of his statement in the Central Jail, Ludhiana. The modus operandi adopted by the appellant, the active role of Shri Rakesh Goyal to defraud the Government have been brought out clearly by the statements of Shri Sunil Kumar, the broker and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icisms. The evidence, statement or recorded on which the charge is being made against him the demands and test of natural justice are satisfied. This Tribunal in the case of Popular Carpet Industries Vs. Commissioner of Customs, Mumbai reported in 1996 (84) E.L.T. 244 has held that where a co-noticee did not agree to be examined he cannot be compelled to come as a witness for cross examination. The Hon ble High Court of Calcutta in the case of Tapan Kumar Biswas Vs. Union of India and others reported in 1996 (63) E.C.R. 546 has held that where the proceedee would be entitled to intercept the relevant documents they would not be entitled to cross examine any witness. Consequently, we are unable to find merit in this submission made by the appellant in the grounds of appeal. 6.2 We now consider the facts of this case in itself. From the submissions of the Authorized Representative of the Department, it appears that impugned goods of all the 3 Live Bs/E where goods were seized for which demand was raised. We also note that the in the impugned order, the adjudicating authority has considered the corroborative evidence viz., the statements viz., Sh Rajeev Mehta, Proprietor of M/s Friend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms. Consequently, we have no hesitation in upholding the enhanced values as shown in the table below:- BE No. Declared Value (Rs Lakhs) Enhanced Value (Rs. Lakhs) 3404861 dt. 30-09-2013 51.23 68.24 3404857 dt. 30-09-2013 25.44 33.89 6.5 The benefit of Notification 99/2009-Cus dt 11.09.2009 cannot be extended to the appellant in view of the overwhelming evidence of diversion of imported raw material to the open market. We note that mensrea of the appellant and Shri Rakesh Goyal is established by the fact that raw material imported duty free by the appellant under Advance Authorization to be used in manufacture of RMGs and exported, was, infact, diverted to the open market. The contention of the appellant that the export obligation against the Advance authorisation was completed stands negated by the letter dt 30.6.2015 issued by DGFT wherein it was stated that for the advance authorization no. 3010093690 dated 07.05.2013, the show cause notice was issued to the party on 29.06.2015. In addition, vide their letter dated 13.08.2015, it was confirmed that demand notice dated 18.11.2014 had been issued. We also note that the appellant has not denied the findings of the investigation. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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