9911796707
TMI Blog2010 (4) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority was upheld. The brief facts, which are involved in the present appeals, are that 16 export containers of the appellants, which were on their way to Nhava Sheva port for shipment, were detained and the same were covered under 74 shipping bills. It was found that the goods which were actually exported were different from the goods from which the samples had been drawn. It is a matter of record that the said 16 containers were placed under seizure and Show Cause Notice was issued to the concerned persons and the entire matter is yet pending for final adjudication and which is not a subject matter of the present case. On the basis of the above said seizure, the DRI drew an inference that since the live consignments seized in the above said case showed the material to be sub-standard, the past exports in the present case might not have been genuine. On the basis of the aforesaid assumptions and presumptions, show cause notices were issued to the appellants by the DRI. It was, inter alia, alleged in the said show cause notices that the goods shown to be "Heat Resistant, Rubber Tension tape and raw material for gear cutting tools and track wheels" were misdeclared in descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el appearing for appellants and Mr.H.P.S.Ghuman, learned counsel for the respondent at length. The learned Senior counsel for the appellants has argued that when the proceedings before the Adjudicating Authority were at an advanced stage, an addendum containing supplementary allegations qua the searches made in the year 2003 was also issued in the present case when the reply to the show cause notice was already filed and cross-examination of witnesses was also over. Therefore, issuance of the said addendum was not permissible in the eyes of law. He has placed reliance upon the case of Mahindra & Mahindra Vs. CCE 2006 (196) ELT 62 (CESTAT) to contend that the issuance of addendum was not sustainable. It is further contended by the learned Senior Counsel that no person mentioned as witnesses was examined to prove the allegations pertaining to the addendum in question. The counsel has further disputed the overseas enquiry report produced by the Revenue while contending that the same was not supported by any other corroborative piece of evidence. In the said report as the allegations qua the enquiries made from the foreign buyers are based on the statement of one Yogesh Patel, Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the addendum were, in fact, made up of 'alloy steel'. On the other hand, the learned counsel for the respondent Sh.H.P.S.Ghuman has vehemently opposed the contentions raised by the counsel for the appellants and has supported the allegations contained in the Show Cause Notice as well as the impugned orders. He contends that there was no manufacture of export goods in the factory and the goods exported were sub-standard. He further argued that certain consignments declared to be 'Heat resistant rubber tension tape' and raw material for 'gear cutting tools' and 'track wheels' have been shown to have been purchased from certain firms, were exported to various firms in foreign countries but on inquiry it was found that none of the consignees existed. Not only this, the export proceeds of the goods exported to the consignees in U.K. have been received from countries other than the consignee country, therefore, this is a clear indication that the exports were not genuine. He has further argued that the Tribunal has concurred with the Commissioner's finding that the goods, in question, had been grossly misdeclared in terms description, quality and value with intention to claim draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring High Speed Steel…" It is a matter of record that the goods had already reached the hands of the foreign buyer and the export remittances have been received. Therefore, the export obligation was complete in all respects. It has further been pointed out that material had left the territorial waters of India and export proceeds had been remitted through proper banking channel. The requirement of drawback is that goods should be exported out of country and currency should be realized. In the present case, when the goods got clearance, moved to the high seas beyond the territorial waters of India and the title to the goods also passed to the purchasers and export remittances have been received, the export is complete. The question as to whether, the export is complete for the purpose of duty drawback, had come up for consideration before the Hon'ble Apex Court in the case of Collector of Customs, Calcutta Vs. M/s.Sun Industries, 1988(supp) SCC 342. in the said case, it has been held as under: - "4. Section 2(18) states "export" with its grammatical variations and cognate expressions, means taking out of India to a place outside India. The Customs and Central Excise Duties Drawba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining both safe and unsafe berths. The word "place" as used in a statute relating to searching for stolen goods in any store, shop, warehouse, or other building or place in a town, includes a steam boat or vessel moored at the wharf. See Words and Phrases, Permanent Edn., Vol. 32-A, p. 128. The word "place" is generally found in conjunction with other words which give it a colour, and is usually controlled by its context. For example, "place for water" includes a well. See Stroud's Judicial Dictionary, Third Edn., Vol. 3, pp. 2199 and 2208. 9. In that view of the matter, in our opinion, there was export of the goods in terms of Section 75 of the Act…" It is further an undisputed fact that when the reply had already been filed and the Adjudication Proceedings were at an advance stage, an addendum to the Show Cause Notice seeking to bring on record certain additional facts and grounds pertaining to subsequent exports made by various firms as well as searches made in the year 2003 was also issued. We find that the appellants have not been afforded a proper opportunity to defend the said addendum and also to cross-examine the witnesses sought to prove the same. Even there is a vigi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the export by the aforesaid customs officials of CFS Ludhiana, and Jalandhar were intercepted by DRI officials at Nhava Sheva Port, Mumbai and opened in presence of independent witnesses during 6.6.2000 to 9.6.2000. Samples were taken from these containers and tested at Customs Laboratory Mumbai, which confirmed that although the items were shown to contain Heat Resistant tension Tapes, Track wheels and Gear Cutting Tools of Cobalt bearing high speed steel, yet the same are found to be of inferior quality. Further total weight of 2,13,830 Kgs shown in the shipping bill was found to be short by 99,010 Kgs. Shri Arun Shori, Chartered Engineer confirmed the market value of (he goods contained in the aforesaid 15 containers to be much less than their declared value. All the aforesaid Companies/firms were alleged to have claimed incentives based on the declared values under the Duty Entitlement Pass Book Scheme and Duty Draw Back scheme… …In view of the above it was alleged that Sh.Vinod Garg, Prop. M/s SRG International and other aforesaid mentioned Companies/firms in connivance with S/Sh. A.K. Kaul, D.R. Ahuja, both Superintendents, T.N. Dhar, M.P. Singh, both Inspectors, posted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , U.P. manufactures/exporters of forged/machined automotive components, which opined that the sample weighing approx. 18 KG was made of Alloy Steel Forgings and was machined and its estimated market value was between Rs. 2300/- and Rs. 2700/- per piece vide it's report dated 14.5.2002. Further, Shri Vimal Kumar Aggarwal of M/s V Kumar & Associates, SCO 124-125, 1st Floor, Sub-City Centre, Sector 34A, Chandigarh who conducted the Special Audit u/s 14A of the Central Excise Act, 1944 in respect of M/s National Steel Products Company / Nandan Auto Tech Limited, Ludhiana for ascertaining the value of exported goods has mentioned in his report dated 2.4.2007 submitted to the Customs, Excise and Service Tax Appellate Tribunal, New Delhi that the assessable rate of exported goods i.e. Alloy Steel Forgings (Machined) is Rs. 117.22 per Kg. in the case of manufacturer Nandan Auto Tech Limited and Rs. 141.60 per Kg. in case of merchant exporter M/s National Steel Products Company. If the manufacturing cost of Alloy Steel Forging s (Machined ) of Rs. 117.22 is taken as the ARE 1, price, then it's present market value (PMV) would be Rs. 175.83 after adding the admissible transporting cost etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this report and did not seek further tests on the samples to fine out whether the samples are forged (Machiend) or otherwise. Further, while setting aside the COFEPOSA order against A3 Narsi Dass Garg and A4 Vinod Kumar Garg, the Division Bench of the Hon'ble Supreme Court of India in it's order dated 21.9.2004 passed in Crl. Appeal No. 822 of 2004 also observed that "the subject matter of the consignment was not scrap metal and was made up of Alloy steel as per CRCL report and that the order of detention was passed in haste without there being adequate materials." "Thus, investigation did not reveal evidence to prove mis-declaration or over-invoicing of the export product by the merchant exporters till the time of clearance by Customs officials. " "Investigation has further revealed that after getting the Customs cleared export documents such as Bills of landing. Mate Receipts etc., from the Shipping Line/s, the merchant exporters deposited the said documents along with other relevant documents with the bankers of the merchant exporters i.e. (i) State Bank of Hyderabad, Ludhiana in the cases of M/'s Sunrise International (Account No. 01000050039), M/s International Engineers (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs officials to facilitate the clearance of such goods do not stand substantiated and no criminal case is made out against any of the accused persons. There is no dispute regarding the realization of export proceeds from the consignees through proper banking channels and consequent issuance of BRC's and DEPB licenses by the Ludhiana based banks and office of DGET (Licensing), New Delhi respectively. The DEPB licenses so issued were also sold/transferred to other importers by the merchant exporters as per the DEPB scheme and there is no dispute on this point also".… As such the CBI proceeded to file a closure report. It is further an admitted fact on record that the said report also stands accepted by the concerned Special Court and has not been challenged by the respondent or the DRI in any higher forum. On the contrary, during the course of the arguments, the learned Counsel for the appellant has contended that the respondent Commissioner of Customs(Preventive) Amritsar in their Appeals before this Court, which were dismissed, had also placed reliance on the reports of the CBI to contend that action could not be proposed against the concerned officers, as the CBI had found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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