TMI Blog2003 (10) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... 67/94 by J.K. Yagnik, 668/94 by Vinod Jatia and 1782/94 by H.P. Daga Co. 2. In these orders, the Commissioners have found that defective cold roll sheets and coils imported by various firms and cleared without payment of duty in terms of exemption contained in Notification 116/88 were not utilised in the manufacture of goods to be exported, but disposed of by sale. They had therefore demanded duty totalling on these goods. They have further found that the goods were in fact really imported by A.R. Gupta, Pravin Gupta and Bipin Gupta and not by the putative importers to whom the advance licences had been issued and who filed the bill of entry for their clearance. They have found that these three persons sold the goods and imposed penalties on them. In the order dated 14-9-1993, the Commissioner has imposed penalty on J.K. Yagnik and on H.P. Daga Co. the Custom house agent who was engaged to clear the goods through the Custom house and on Vinod Jatia both for being concerned in the illegal disposal of the goods. 3. We have heard the counsel for the appellants and considered the written submissions filed on behalf of A.R. Gupta, Bipin Gupta, Pravin Gupta and Vinod Jatia. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a statement including any of the Guptas. These persons only helped to obtain the advance licence on behalf of the importers to file the application and handed them over to Vinod Jatia. The finance, importing and clearing in the local market is done by Vinod Jatia only. Heavy reliance is placed on the fact that the proposal to impose penalty on Vinod Jatia has been dropped in all but one out of the six notices issued extending the benefit of doubt to him. The same benefit of doubt would have to be extended to these appellants. It is contended that adjudicating on one set of this notices, the Commissioner has imposed penalty on Vinod Jatia and demonstrated that in each of the transactions it was Vinod Jatia alone who was the financer and importer and sold the goods. This has what has been found by the Tribunal too. It is alleged that the concerned department of the custom house deliberately badly investigated the matter so as to help Vinod Jatia and hence was biased against these three persons. The order passed by the Commissioner adjudicating one of the notices is cited in support of the contention. 7. We will first consider the preliminary objection raised by the Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learing them through customs taking delivery thereafter was all done by Pravin Gupta. He says that the custom house agent H.P. Daga Co. was engaged by directly by Pravin Gupta and he gave a cheque of Rs. 34,181 in favour of HPD CO. in accordance with the instruction of Pravin Gupta which was disowned for want of funds. He subsequently made a draft in favour of H.P. Daga Co. He had never met or known the clearing agent. The Commissioner also refers to the statement of Pravin Gupta. In this statement, Pravin Gupta accepts that he proposed to Arun Patel that the latter undertake the import of steel sheets. On Patel agreeing, an application was made in advance licence in DEEC book in Patel s name. All the work for applying for licence and DEEC book was done by Pravin Gupta and his father. Thereafter the licences were handed over to Vinod Jatia and the rest of the work was done by Vinod Jatia. Gupta however accepts that for purpose of import and subsequent clearance of goods he and his father got various form and declarations letterhead delivered challan etc. signed from the importer on blank and claims that they were delivered to Vinod Jatia. 10. In his statement A.R. Gupta als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta or his sons who came for clearance of the goods and more importantly to whom delivery of the imported goods was given to them clinches the matter. 12. The next contention that since the Commissioner has in one of the orders impugned in the appeal has extended the benefit of doubt to Vinod Jatia the same benefit should be extended to the Guptas is difficult to understand. What has to be decided whether a particular person is liable to penalty or not in doing so it would not be appropriate for the Tribunal to go by the Diktat of the Commissioner whose order is in appeal before it. Whether the Commissioner has rightly or wrongly extended the benefit of the doubt to Vinod Jatia (if he has done so) is to be decided on the merits of the issue on the application of any one aggrieved by that decision, unless of course the Tribunal accepts the reasoning that the Commissioner has followed. It has to decide these matters on independent reasoning and not following the reason of the Commissioner. The Commissioner order s has to be referred to consider the evidence that he has relied upon and to decide whether he has correctly decided the issue and not to adopt the reasoning. On the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in the four orders impugned in the appeal Vinod Jatia had been exonerated in three and it is only in the fourth that he has been found guilty. All four orders were passed in pretty much identical circumstances and the department is not appealed the finding of the Commissioner in the three orders in which he has exonerated Vinod Jatia. The Commissioner does not find any specific evidence against Jatia except the statement of members of the Gupta family and virtually admits this to be the case when he says that Vinod Jatia role has been so subtle and clever so that he has not left any traces behind. 15. The departmental representative emphasized what the Commissioner finds against Vinod Jatia. 16. In three out of the four orders in appeal, the Commissioner in identical circumstances, has dropped proceeding against Jatia on the ground that while there is evidence to suggest that he might be the financer, that is to show that either he was concerned with the import of these goods or their disposal in the market. In the order impugned in the appeal, the Commissioner has found it fit to impose penalty on Vinod Jatia on a different finding. The Commissioner s statement that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Vinod Jatia of any such role. He says that he came to meet him once in order introduce A.R. Gupta to him and thereafter on his dealing with A.R. Gupta or his two sons and he did not have anything to do with Vinod Jatia thereafter. In the absence of evidence, whether Lodhaya refused to implicate Vinod Jatia because he was Vinod Jatia s man (whatever that may mean) is nothing more than pure speculation. This indeed was the strong thrust of the argument before us for the Counsel for the members of the Gupta family. But whether made before the Commissioner or before us, these are nothing more than allegations. Such allegations are an insufficient basis for imposing penalty. 17. The other argument of the Commissioner that Vinod Jatia role has been far more clever than other persons involved in the conspiracy (and) like a professional he has taken care to ensure that he does not leave any trace behind of his illegal deeds is hardly a ground. Such a statement can be made about any person against whom there is no evidence or insufficient evidence. We do not find it possible to comment on the quality of investigation in these matters. No material has been cited before us to justify ..... X X X X Extracts X X X X X X X X Extracts X X X X
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