TMI Blog2010 (3) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... and forwarder) contributed for the cause of defrauding Revenue by various manipulations and malicious design and they were conduit to cause evasion of duty for which they do not deserve any consideration for waiver of penalty imposed on them. - C/121-122, 141, 149, 150, 151, 164, 123, 124, 152 - C/27-37/2010 - Dated:- 15-3-2010 - Dr. Chittaranjan Satapathy, Member (T) and Shri D.N. Panda, Member (J) S/Shri Hemant Bajaj, Anand Nandan, Pradeep Jain and Prabhat Kumar, Advocates, for the Appellant. S/Shri Vijai Kumar and Sunil Kumar, SDRs, for the Respondent. [Order per : D.N. Panda, Member (J)]. - Two batches of appeals were made against two adjudications done in respect of different imports of ball bearings involving following appellants who came before Tribunal facing consequences of adjudication as depicted in the table below. Both sets of appeals are dealt by this common order in view of similar cause of action and common investigation resulting in similar consequences. Both sides could not inform whether other persons/concerns against whom adjudication was also done by the following order were whether in appeal. Accordingly this order is confined to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962 was made. As the goods were not available for confiscation, fine of Rs. 5 lakhs was imposed in lieu of confiscation on Shri Ram Kishan Tiwari, the Proprietor of M/s. Maya Trading Co. (3) Anti-dumping duty amounting to Rs. 1,34,80,020/- (Rupees One Crore Thirty Four Lakhs Eighty Thousand and Twenty only) in respect of B/E No. 361632 dated 19-6-2003 was recoverable from M/s. Maya Trading Co. and Shri Ram Kishan Tiwari, the Proprietor of M/s. Maya Trading Co., under Section 28 of the Customs Act, 1962 read with proviso to the Section 28(1) of the Customs Act, 1962 and further read with Clause 8 of Sub-Section 9 of Section 9A of the Customs Tariff Act, 1975. (4) Confiscation of 6,00,000 pcs. of bearings imported vide Bill of Entry No. 361632 dated 19-6-2003 under Section 111(d) (m) of the Customs Act, 1962 was made. As the goods were not available for confiscation, fine of Rs. Four lakhs was imposed in lieu of confiscation on Shri Ram Kishan Tiwari, the Proprietor of M/s. Maya Trading Co. (5) Customs duty amounting to Rs. 11,58,724/- (Rupees Eleven Lakhs Fifty Eight Thousand Seven Hundred Twenty Four only) in respect of B/E No. 158099 dated 23-5-2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consequences of Adjudication Order No. 100/2005, dated 28-11-2005 4. Order of adjudication No. 100/2005 dated 28-11-2005 also gave to rise to other consequences as under in addition to the consequences aforesaid faced by the respective appellants : (1) Anti-dumping duty of Rs. 91,91,943/- was recoverable from M/s. Aman Traders and Shri Surya Narayan Mishra, the proprietor of M/s. Aman Traders under Section 28 of the Customs Act, 1962. (2) Confiscation of seized 4,189,20 pcs of ball bearings of 'KG' brand imported vide B/E No. 367208 dated 17-10-2003 and the wooden pallets, cardboard boxes, cartons inner packages used to pack the aforesaid 418920 pieces of bearings under Section 111(d) and (m) of the Customs Act, 1962 was ordered with an option to the importer i.e. M/s. Aman Traders to redeem the goods on payment of redemption fine of Rs. 20,00,000/- (Rs. Twenty Lakhs only) i.e. after payment of Anti-Dumping duty. (3) Penalty of Rs. 91,91,943/- was imposed on Shri Surya Narayan Mishra, the proprietor of M/s. Aman Traders, under Section 114A of the Customs Act, 1962. As he is the sole proprietor of M/s. Aman Traders, I do not impose any separate penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Bill of Entry showed that 10% of the goods were examined by Customs and country of origin appearing on the carton was Sri Lanka. An amount of Rs. 6,62,027/- was shown to have been paid as Customs duty vide TR 6 challan. Assessment to duty was found to have been done @ 25% Basic Customs duty + 16% CVD + Special Additional Duty. (c) Commercial Invoice No. AJPL-2003/1007 dated 13-7-2003 issued by Aurea Industries Pvt. Ltd., 547/2, Weralatundulwa Road, Negomba Mabole, Wattala, Sri Lanka showed that the said concern had sold 4,21,170 pcs of ball bearings to M/s. Metal Trading Co., Dubai for an amount of US $ 39,111.50 with delivery port shown as Nhava Sheva and final destination as ICD, Patparganj. (d) Commercial Invoice No. MTC/2003/075 dated 25-8-2003 issued by M/s. Metal Trading Co., LLC, Dubai showed that aforesaid 4,21,170 pcs. of ball bearings declared to be of Sri Lanka origin in the invoice were sold to M/s. Aman Traders, 26/116, Gali No. 10, Siddhharth Gali, Vishwas Nagar, Shahdara, Delhi for US $ 41362.95. (e) Country of Origin Certificate No. 202398 dated 25-10-2003 issued by Dubai Chamber of Commerce Industries showed country of origin a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conducted with the Jt. DGFT, New Delhi to gather further details about M/s. Aman Traders. The 'Edit report' dated 27-10-2003 issued by that Authority revealed that proprietor of that concern was Sri Surya Narain Mishra, R/o 156/20, Om Nagar, Gurgaon (Haryana). Enquiry was conducted to that address. Neither Shri Surya Naryan Mishra resided there nor any firm in the name of M/s. "Aman Traders" existed thereat. 9. In absence identity of importer; absence of declaration regarding 'KG' Brand markings on the bearings in the import documents; non-existence of the importing firm 'Aman Traders' at the declared address; absence of country of origin certificate issued by the specified Sri Lankan authorities and the 'KG' brand bearings being of Chinese origin, attracting anti-dumping duty; 4,18,920 pcs. of ball bearings of 'KG' Brand recovered from the aforesaid container during the search along with the packings were seized under Section 110 of the Customs Act, 1962. Country of origin was found to be mis-declared by the importer with intent to evade anti-dumping duty. When it was found that fraudulent import was made in the name of Aman Traders, a Show Cause Notice F. No. 338/XIV/96/2003, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Therefore Investigation proceeded further to enquire into the antecedents of M/s. Maya Trading Co. and another concern viz., M/s. Devsons as well as the persons connected thereto causing the impugned imports. 13. Gathering information that M/s. Maya Trading Co. was operated from shop No. 3, Plot No. 188, Pocket-E 21, Rohini, Delhi, owned by one Sri Jaipal Singh, Investigation examined him on 3-11-2003. He confirmed that he had let out that shop to Sri Ramkrishna Tiwari of A-90/1, Jagatpuri, Delhi-51 and Sri Tiwari was doing business with one Sri Mukesh Gupta in the name of M/s. Maya Trading Co and they use to open the shop occasionally. But they vacated the shop in May, 2003. Accordingly Investigation proceeded to examine Sri Mukesh Gupta, who resided at Rohini. 14. Sri Mukesh Kumar Gupta was examined on 4-11-2003, who was resident of 55B, BA Block, Ashok Vihar, Phase-I, Delhi at the material time. In his oral evidence he stated that he was helping Shri Anil Goel of KMG Group. M/s. Maya Trading Company was formed by him at the instance of Sri Anil Goel. He confirmed that he took the premises identified as Shop No. 3, Plot No. 188, Pocket E-2, Sector 3, Rohini, Delhi from Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the godown at the above address was owned by one Sri Arun Gupta. Enquiry made from Sri Arun Gupta confirmed that he owned the godown and that was used by his brother-in-law Sri Anil Goel who was one of the Directors in M/s. KMG International. Accordingly the godown at 138-C, Main Road, Gazipur, Delhi was opened on 1-11-2003 in the presence of Panch as well as in the presence of Sri Pawan Goel, who was one of the Director of KMG Group and the godown owner Sri Arun Gupta. The search operation thereto resulted with finding of number of empty cardboard cartons with the marking: M/s. AUREA INDUSTRIES PVT. LTD 574/2, WERALATUDUWA ROAD, OFF NEGOMBO ROAD MABOLE, WATTALA, SRI LANKA, TEL : 941-934257, FAX : 941-388712. This brought to light imports which was subject matter of adjudication Order No. 100/2005, dated 28-11-2005. 15. Inventory of the goods in the godown at 138-C, Main Road, Gazipur, Delhi revealed that rolls of copper wires were lying along with card board cartons found to have contained electronic fluorescent lamps of KMG brand with the markings : KMG/SL, MADE IN SRI LANKA. Carton/plastic sacks were found to have contained bearings of 'KG' brand and certain other bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), container No. CLHU 2603659 and gross weight as 27941.670 kgs. The certificate of origin submitted along with import documents was shown to have been issued retrospectively by Department of Commerce, Sri Lanka bearing Reference No. CO/ISFTA/03/2138 dated 3-4-2003 showing country of origin as Sri Lanka. This Bill of Entry was filed through CHA M/s. Star Carrier. The examination report mentioned the goods, inter alia, as "ball bearings, goods …… assessable value of the goods was determined at Rs. 28,26,183/- and Bill of Entry was found to have been assessed @ Nil Basic Customs Duty (under exemption Notification No. 26/2000 dated 1-3-2000 as amended which applicable to specified goods manufactured in Sri Lanka) + 16% CVD + 4% Special Additional Duty (SAD). The Total amount of duty assessed and paid on 3-5-2003 was Rs. 5,83,324/-. (2) Bill of Entry No. 361632 dated 19-6-2003 was found to have been filed in the name of M/s. Maya Trading Company, Plot No. 188, Pocket E-21, Sector-3, Rohini, Delhi and covered import of 6,00,000 pieces of ball bearings from M/s. Metal Trading Company, LLC, Dubai vide container No. APMU 2749486. The commercial Invoice Number 029 dated 27-5-2003 issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there-under were ball bearings - 5,90,940 pieces of various sizes and prices as detailed in the commercial invoice, totally valued at US$ 65003.40. The packing list in respect of container No. DNAU 2220130 had details of total 275915 pieces of ball bearings of various sizes, packed in 504 boxes, gross weight as 26043.740 and net weight as 24983.240 and packing list in respect of container No. DNAU 2228466 had details of total of 315025 pieces of ball bearings of various sizes, packed in 511 boxes, gross weight as 24353.810 and net weight as 23293.310. The Bill of Lading number DNALCMB 030500028 dated 11-5-2003 issued by DONGNAMA Shipping Co. Ltd. mentioned the port of Lading as Colombo, Port of discharge as Nhava Sheva, Place of delivery as Patparganj (Delhi), container numbers DNAU 2220130 and DNAU 2228566 and gross weight as 50400.000 kg. The Certificate of origin submitted along with import documents was shown to have been issued retrospectively by Department of Commerce, Sri Lanka bearing Reference No. CO/ISFTA/03/2748 dated 12-5-2003 showing the country of origin as Sri Lanka. The Bill of Entry was filed through CHA M/s. Star Carrier. The examination report mentioned in the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4% Special Additional Duty (SAD). The total amount of duty assessed and paid through DEPB on 2-7-2003 was Rs. 7,62,176/-. 17. Sequel to above, oral evidence was also recorded by investigation from different persons such as Sri Arun Gupta on 31-10-2003, Sri Jaaipal Singh on 3-11-2003, Sri Mukesh Kumar Gupta on 4-11-2003, Sri H. L. Arora on 2-12-2003, Sri Rajkumar Parcha on 6-11-2003, Sri Ravindra Uniyal on 9-12-2003, Sri Dinesh Kumar on 9-12-2003, Sri Dalbir Singh on 9-12-2003, Sri Gulab Singh on 9-12-2003, Sri Ajab Singh, Driver on 22-12-2003, Sri Basant Sharma on 10-12-2003, Sri Tutul Mandal on 10-12-2003, Sri Gautam Chatterjee on 16-1-2004, Sri Yusuf Khan on 16-1-2004, Sri Anil Goyel on 12-12-2003, Sri Mohan Lai Thappar on 24-12-2003, Sri Dillip F. Meheta on 6-2-2004, Sri Jitendra F. Meheta on 6-12-2004 and Sri Champalal Daga on 6-2-2004. 18. Investigation could not know whereabouts of Sri Ramkrishna Tiwari, Proprietor of M/s. Maya Trading Co and also whereabouts of Sri Raju, Proprietor of M/s. Devsons could not be known. 19. On examination of seizure of the impugned goods made form the godown at 138C, Main Road, Ghazipur, Delhi through panchnama and the goods covered by f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vsons), No. CO/ISFTA/03/3618, dated 16-6-2003 (relevant to B/E No. 158324 dated 2-7-2003 filed in the name of M/s. Devsons) and CO/ISFTA/03/2138 dated 3-4-2003 (relevant to B/E No. 157960 dated 1-5-2003 filed in the name of M/s. Maya Trading Co.) produced before customs authorities at ICD, Patparganj for clearance of the impugned goods at concessional rate of duty were forged documents and those were not issued by the Deptt. Of Commerce, Sri Lanka which was the designated authority under the Indo Sri Lanka Free Trade Agreement. 21. Enquiry was also conducted through Consulate General of India, Dubai about the profile of "KG" International which is otherwise well known to be the manufacturers/suppliers of "KG" ball bearings to India. Vide letter dated 29-3-2004, the Consulate sent two letters from M/s. KG International. Vide letter dated 8-3-2004 signed by Ms. Asma Noor, Executive Secretary, KG International, it was confirmed that KG brand was owned by them; that they get ball/roller bearings manufactured from China on job work basis. Vide Communication dated 28-3-2004, KG International confirmed that they do sell ball or roller bearings to local customers on cash payment basis. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 11 of the reply, he tried to co-relate the seized bearings with the bearings purported to be imported at Tuticorin Port. The part numbers of bearings as mentioned in import documents, records of CWC authorities at ICD Patparganj pertaining to movement of goods, the statements of Manager/owners of Transport Cos., truck drivers and Shri Kapur Chand, the person who used to supervise unloading of imported bearings at the godown of M/s. KMG International at 375, Main Road, Ghazipur, New Delhi and shifting thereof to the godown at 138-C, Main Road, Ghazipur, New Delhi established that the seized bearings were part of the bearings imported by M/s. Maya Trading Co. and M/s. Devsons vide B/E nos. 157960 dated 1-5-2003, 158099 dated 23-5-2003, 361632 dated 19-6-2003 and 158324 dated 2-7-2003. Learned adjudicating Authority observed that the manager/owners of transport companies, truck drivers of Shri kapur Chand have not retracted from their statements. 24. Based on the outcome of investigations made against aforesaid 4 B/E Show Cause Notice No. DRI F.No. 338/XIV/98/2004 dated 30-4-2004 was issued to M/s. Maya Trading Co., Shri Ram Kishan Tiwari and Shri Anil Goel, M/s. Devsons, Shri R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FTA/03/2138, dated 3-4-2003. This country of origin certificate was found to be forged one. The goods covered under this Bill of Entry were cleared at NIL rate of basic customs duty under the Notification 26/2000-Cus., dated 1-3-2000. Thus duty was evaded by the importer by wilful misdeclaration and mis-representation of facts. Hence, the duty on the subject bearings was recoverable under Section 28 read with proviso 12 to the said Section 28 of the Customs Act, 1962 from the importer. (b) B/E No. 158099 dated 23-5-2003 In respect of the goods involved in the B/E No. 158099 dated 23-5-2003, the country of origin was declared on the import documents was Sri Lanka. It was done on the basis of the country of origin certificate No. CO/ISFTA/03/2748 dated 12-5-2003. The country of origin certificate was found to be forged one. The goods covered under this Bill of Entry were cleared @ nil basic customs duty under the Notification 26/2000-Cus., dated 1-3-2000. Thus duty was evaded by the importer by wilful misdeclaration and mis-representation of facts. Hence, the duty on the subject bearings was recoverable under Section 28 read with proviso 12 to the said Section 28 of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply to the show cause notice was received from Shri Ram Kishan Tiwari and Shri Raju of M/s. Maya Trading Co. and Devsons respectively. The Appellant Shri Anil Goel did not dispute valuation adopted in the show cause notice to determine the assessable value of the impugned goods. Value of these bearings was determined to be Rs. 10,43,765/- Anti-dumping duty and basic customs duty was leviable on these bearings and such duty was evaded by wilful mis-statement and suppression of facts. Accordingly these duties became recoverable from the importer invoking extended period under the provisions of Section 28 of the Customs Act, 1962 and Anti-dumping duty was leviable under Notification No. 89/2003-Cus., dated 4-6-2003 was recoverable under Section 28 read with proviso to the said Section 28 of the Customs Act, 1962 and clause 8 of sub-Section 9 of Section 9A of the Customs Tariff Act. 28. Finding conscious involvement of Shri Suresh Pal Gupta, Shri Mukesh Kumar Gupta, Shri Arun Gupta, Shri Dilip F. Mehta, Shri Basudev Garg, Shri Ashok Pathak and Ms. Preeti Daga, Anil Goel, Shri Raju and Shri Ram Kishan Tiwari, learned Adjudicating Authority completed adjudication with the consequences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no mention that the letter dated 28-7-2004 sent by Department of Commerce was not genuine. If that was not genuine what action was initiated against the person who issued the same was not on record. Even the report after lapse of considerable period is silent about the third certificate of Origin No. 2138. Even then the Commissioner has treated the said certificate as fake in para 71 (iv) of his Order. Thus any finding treating the said certificate to be false is not sustainable. 31. Sri Jain learned Counsel further submitted that bearings which were seized were not of Chinese origin in absence of technical data or test report. Only plea of Revenue was that goods were 'KG' marked. His further argument was that if the certificate of origin is not genuine, a negative does not prove that the bearings were of Chinese origin. There were no materials to show that M/s. Aurea Industries Pvt. Ltd. had imported bearings from China or they had not purchased bearings of origin of Sri Lanka. In respect of B/E No. 361632 dated 19-6-2003, when the goods were shipped in May, 2003 when there was no anti dumping duty on bearings and IGM was filed thereafter, the import of goods was complete before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s providing occasional service. The entire set of documents relied upon by Revenue was not provided to the Appellant for which natural justice was violated. Reasons why penalty shall be imposable was not stated. Adjudication was done ex parte and the appellant had not received notice. The Appellant was merely handing over shipping documents to the Customs Authorities. He had no business to verify the genuineness and authenticity of documents. The appellant has not connived and had no hand in glove. Therefore there should not be proceeding against the appellant. According to the learned counsel Sri Anand Nandan, the Appellant Sri Ashok Pathak was merely an employee of CHA and he was acting for the clearance of imports on the basis of documents given to him without attaching himself to the commitment of any offence under the law. He was not aware of any motive of Sri Anil Goel to make import of any offending goods to cause evasion. His role was neither active nor connected any ill intent of the imports for which he should not face penalty u/s 112(a) of the Customs Act, 1962. Argument on behalf of Appellants Ms. Preeti Daga and Sri Dillip F. Meheta 34. Learned counsel Sri Hemant B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to confiscation. There was no evidence showing any wrong done by her. There was also no evidence on record to show that the appellant had connived with any person to give false document. Submissions of Revenue 36. Both the learned SDRs appearing on behalf of Revenue argued that all the appellants faced consequence of adjudication for causing loss of Revenue. The basic issue involved in these batches of appeal relate to fraudulent import of "KG" brand ball bearings of Chinese Origin. But that was not actually so. The import documents misdeclared the goods were of Sri Lankan origin. The duty free exemption availed by the importers impressing that the goods were manufactured in Sri Lanka turnout to be false. Customs duty leviable on the Ball Bearings imported was evaded seeking notificational benefit which granted exemption to goods manufactured in Sri Lanka. Investigation revealed full proof smuggling activity by a group of individuals/concerns, to defraud Revenue. 37. Learned SDRs argued that the Appellant Sri Anil Goel was masterminded person and he was behind the scene operating the imports through three different dummy concerns viz., M/s. Aman Traders, M/s Maya Trading C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok Pathak, representative of CHA rendering his services for fraudulent clearances causing loss of Revenue and cause for evading duty payable on the goods imported. After clearing the goods on the advice of Sri Anil Goel, he was arranging transport of illegally imported goods to the destination for storage and trading was done from that place. He having been actively involved in clearing the goods for M/s. Maya Trading Company and M/s. Devsons causing evasion of duty at the instance of Sri Anil Goel, he has to face penal consequences of law. He did not reply to Show Cause Notice nor appeared for hearing but remained silent to save his principal without cooperating adjudication. 41. Revenue submitted that Sri Suresh Pal Gupta had played an active role to manipulate Country of Origin Certificate from Dubai Chamber of Commerce and connived with Shri Anil Goel as well as with Shri Dillip F. Meheta to send the goods to India and was instrumental in causing loss of Revenue. Against the appeal preferred by Sri Dillip F. Meheta, Revenue's submission was that he admitted in his oral evidence that he was working in M/s. Aurea Industries on the instructions received from Shri Suresh Pal Gupt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea of violation of natural justice made. There was no error of law committed or any element of perversity exists in the acceptance of the testimony of the oral evidence recorded and the inference drawn. Entire evidence on record proved complicity of the appellants and due process of law was followed in the adjudication process granting every opportunity of rebuttal. 43. With the aforesaid submissions, Revenue relied on the judgment of Hon'ble High Court of Andhra Pradesh in the case of Gyanoba Yaswant Yadav v. Collector of Central Excise decided on 20-1-1972. It was also submitted that when the materials gathered in the course of investigation and followed up enquiry were relevant and admissible in admissible in evidence, those were mound to be used against the appellants since evasion and smuggling are organised white collar crimes committed under absolute secrecy. Revenue also placed reliance on the Apex Court judgment in the case of K.I. Pavunny v. AC, Cochin - 1997 (90) E.L.T. 241 (S.C.) for their above argument. 44. It was further submitted by learned DRs that learned Adjudicating Authority is not in any sense a Court. He is not bound by any procedure laid down by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on him who gave the statement and cross examination in such circumstance is unwarranted even if such statement is retracted subsequently since Customs Authorities are not police officers. Revenue further placed reliance on the Apex Court decision in the case of K. T. M. S. Mohammed and Others v. UOI - 1992 (3) SCC 178 to submit that mere retraction of an evidence recorded u/s 108 of Customs of Act, 1962 is not sufficient to take opportunity at a later date to plead that as value less when the maker of statement fails to establish that improper means was adopted to record such evidence. 46. It was submitted by Ld. SDR that the appellants utterly failed to prove their bona fide in these batches of appeals. So also Revenue's pleading was that statement of a person in the status of co-accused obtained u/s 108 of Customs Act, 1962 is material following the Apex Court judgment in the case of Naresh Sukhwani v. UOI - 1996 (83) E.L.T. 258 (S.C.). 47. It also submitted on behalf of Revenue that the collusion of the parties in these batches of appeals was in the nature of secret arrangements among them for defrauding Revenue and Revenue could discover their modus operandi recovering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the godown situated at 138-C, Main Road, Ghaziapur, Delhi, operated by one Sri Anil Goel and misdeclaration of description of goods as well as value thereof having been noticed by Investigation , country of origin of the goods recovered from both places became questionable, Anti-dumping Duty as well as customs duty was found to have been evaded, extensive enquiry was done to ascertain various aspects including identity of the importers and the persons involved in the imports as well as possessing the offending goods. When amendment to the name of the importer in IGM 8348 relating to the consignment came in BLJU-2201574 supported by Bill of Entry No. 367208 dated 7-10-2003 to show the importer as M/s. Aman Traders instead of M/s. Maya Trading Company as allowed on the basis of request dated 8-9-2003 filed by M/s. Albatross Shipping Pvt. Ltd., New Delhi was noticed by Investigation, that provided various clues for enquiry both in India and abroad. Oral evidence recorded from Shri Sanjay Madan who was Manager of M/s. Albatross Shipping Pvt. Ltd. confirmed the position that on the advice of the agent from Colombo, Shri Madan applied for amendment to IGM to change the name of consign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were contradicted leading any evidence. 53. Statement recorded from Sri Anil Goel, appellants in appeal case No. C/149/06 and C/152/06 on 12-12-2003 revealed that he along with his Brother-in-law, Sri Basudev Garg who is appellant in appeal case No. C/151/06 and with other two formed a group of companies in the name of K.G. International having its office at 375, Main Road, Ghazipur, Delhi. Appellant Sri Basudev Garg was designated as chairman of that group of company. Sri Anil Goel was one of the Directors of that group. Sri Goel took a godown located at 138C, Main Road, Ghazipur, Delhi. That godown was taken from Sri Arun Gupta who was brother-in-law of Sri Goel. Sri Anil Goel did not contradict statement recorded from Sri Gautam Chatterjee and Sri Ashok Pathak relating to Bill of Entry No. 367208 dated 17-10-2003 which is subject matter of adjudication in OIO No. 100/05 dated 28-11-2005 in respect of import of goods made in the container BUU 2201574. He agreed that owner of M/s. Aurea Industries Pvt. Ltd., Sri Lanka had arranged to import Chinese origin bearing of "KG" brand through Sri Lanka from Dubai and manipulated country of origin certificate with a view to evade anti d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Sri Suresh Pal Gupta by his letter dated 1-11-2004 informed that Metal Trading Co. was neither a buyer nor a seller nor the importer or exporter of goods but they were responsible for preparing the documents for nominal profit. 56. In his oral evidence, Sri Dilip F. Mehta stated that he was employee of M/s. Aurea Industries Pvt. Ltd. as resident manager by Sri Suresh Pal Gupta of M/s. Metal Trading Co. He continued to sign the documents for that company. He stated that during his tenure with that concern, the said concern imported only ball bearings of Chinese origin in the finished form. Those goods were packed in carton by M/s. Aurea Industries Pvt. Ltd., Sri Lanka to give impression that the goods were of Srilankan origin. That was done at the instance of Sri Suresh Pal Gupta. He also stated that Sri Anil Goel was the importer in India and the ball bearing supplied by Sri Suresh Pal Gupta of 'KG' brand were manufactured on job work basis in China and those were supplied in the name of various firms as per instruction of Sri Anil Gupta. 57. Intelligence Unit of Sri Lanka made visit to the address of M/s. Aurea Industries Pvt. Ltd., Sri Lanka. They found that the said pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operandi followed by Sri Anil Goel and his associates suppressing description, identity and country of origin of the offending goods remained inside such containers. Those were used as means to facilitate misdeclaration as to description and country of origin of the contents (goods) therein. Such act being detrimental to the interest of Revenue causing evasion of Revenue consciously done by deliberate act, contumacious conduct of Sri Anil Goel as well as his associates was proved and mens rea was well established by Revenue to penalise them. 60. No technical test nor technical evidence was required to identify country of origin of the seized goods when the goods themselves submitted to prove their identity from the markings thereon and from market parlance as well as from long standing experience and knowledge of Customs Authorities who frequently examine imports during their day to day discharge of duties and well acquainted with the nature of the goods. Oral evidence gathered u/s 108 Customs Act 1962, not being contradicted, the goods were found to be of Chinese origin and in absence of any cogent evidence led by the Appellant Sri Anil Goel and others to show that the goods se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other without ruling out their intimate connection to the offence committed. Their motive was found to be oblique. Therefore plea of the appellants for cross-examination was rightly discarded in absence of any cogent evidence being brought to show that they were deprived of process of justice and enquiry was perverse or prejudiced to be interest of justice. Investigation successfully proved the case bringing out entire chain of evidence discovering misdeclaration of the goods to be of Sri Lankan origin and the document relied upon by the appellant were proved to be false followed by recovery of goods hidden in the godown. 64. Overseas enquiry was not challenged to be motivated. Result of enquiry remained uncontradicted except bald plea of denial of cross examination when the goods recovered by search operation proved motive of appellants as well as their ill will and part of goods smuggled was proved to be without proof of import. The case of misdeclaration was proved beyond doubt by cogent evidence gathered by Investigation. Natural justice did not appear to have been violated when cogent evidence brought out by Investigation left no doubt about involvement of the group promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as 138-C, Main Road Ghazipur, Delhi proved its hidden place of storage. This brought out all the people to the chain of illegal trade. 66. Principal grievance of the learned counsel Sri Pradeep Jain was violation of principles of natural justice. That did not weigh consideration when material on record suggested that oral evidence recorded in the course of investigation were neither recorded under whims and fancies nor caprice. Allegations were properly brought out by show cause notice bringing the modus operandi for leading defence. None of the evidence was gathered behind back of the appellants. The report from Sri Lankan Customs was a follow up of the investigation itself. The outcome of investigation was exposed in the Show Cause Notice bringing out the chain of smuggling activities. Appellants failed to rule out questionable role of each other, but contributed to the promotion of smuggling. None of the evidence gathered by Investigation were liable to be discarded merely because those gave rise to adverse consequence against the appellants, in view of their credence and trustworthiness as well as reasonability. Entire argument of revenue on the point of law relating to cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the group proved to be mala fide due to various dubious practices adopted and secret arrangements made by them to hide the goods. Benami transactions came to light. What was apparent was not proved to be real. Chain of evidence established nexus of import with the persons involved and goods recovered serving their ill will. Reasonable belief of Investigation followed by search and seizure brought entire deliberate acts and omissions of appellants to the fold of law. Nexus of each other and their close proximity to the impugned imports as well seized goods was unearthed by niceties of investigation. Ill intent and motive of appellants came to light by investigation and conduct of the parties was proved. 70. Crystal factual findings of the learned Adjudicating Authority and echoing evidence on record do not demonstrate that Adjudications were made suspiciously or under surmise. All pleadings of the appellants were ill founded. Show cause notice properly brought them to charge exhibiting civil and evil consequences for opportunity of rebuttal. Nothing was dealt behind their back. Investigation story was backed by evidence and not impeachable. Corroborative and cogent evidence gat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
