2011 (3) TMI 210 - AT - Customs

Demand - M/s.Kirpal Exports the respondents are engaged in the manufacture and export of woollen garments and obtained advance licence from DGFT under DEEC scheme (quantity based) and made import of duty free mohair tops under Notification No.43/2002 dt.19.4.02 - The investigation was conducted and during investigation it was found that the goods imported duty free were sold into the DTA - The respondents submitted that there is no evidence of imported duty free raw materials diverted into DTA and there is no evidence on record also for purchase of indigenous raw materials for the manufacture of goods which are exported - The statement was disbelieved on the ground that an opportunity of cross examination has not been granted - The matter is remanded to the Commissioner (Appeals) to decide issue afresh after affording an opportunity of being heard to the respondents - Appeals are allowed by way of remand

Summary

Issues:
- Appeal against the order setting aside duty and penalty demand
- Alleged diversion of duty-free imported goods into the domestic market
- Consideration of evidence and statements by the Commissioner (Appeals)
- Requirement of cross-examination for credibility of statements

Analysis:
1. Appeal against the order setting aside duty and penalty demand:
The Revenue filed appeals challenging the Commissioner (Appeals) order that set aside the demand for duty and penalty. The case involved M/s.Kirpal Exports, engaged in manufacturing and exporting woollen garments under the DEEC scheme. The investigation revealed alleged diversion of duty-free imported goods into the domestic market, contrary to the scheme's requirements. The adjudicating authority upheld the demand and penalties, which were later set aside by the Commissioner (Appeals).

2. Alleged diversion of duty-free imported goods:
The Revenue contended that the imported goods meant for export were diverted into the domestic market, supported by statements from the firm's partner and job workers. The absence of evidence showing purchase of indigenous raw materials for exported goods was highlighted. Additionally, discrepancies in a letter seeking permission for sending raw materials to job workers raised doubts on the respondents' actions, leading to the Revenue's argument that the impugned order was unsustainable.

3. Consideration of evidence and statements by the Commissioner (Appeals):
The Revenue criticized the Commissioner (Appeals) for allegedly relying on only one statement and disregarding crucial statements indicating diversion of imported goods. The Commissioner's decision was challenged for not considering all oral and documentary evidence, including the partner's statement admitting diversion. The Commissioner's failure to address all evidence led to the order being deemed unsustainable, resulting in the appeals being allowed for remand.

4. Requirement of cross-examination for credibility of statements:
A key aspect of the case was the credibility of statements, particularly that of Shri B.B.Jain, a partner of M/s.Gautam Woollen Mills. The Tribunal noted that the statement disbelieving receipt of raw materials for job work was not subjected to cross-examination, affecting its reliability. The Tribunal emphasized the need for a fair opportunity to cross-examine witnesses to ensure a thorough and just decision-making process.

In conclusion, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh decision after affording the respondents an opportunity to be heard. The judgment highlighted the importance of considering all evidence, ensuring fair procedures like cross-examination, and upholding the integrity of schemes like the DEEC scheme in cases involving duty and penalty demands.