TMI Blog2007 (6) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings initiated against them under Show Cause Notice O.S.14/2006-DIU dated 10-1-2007 issued by the Commissioner of Customs (Imports), Custom House, Chennai-600 001. Shri Atul Ahuja, Director, Shri P.A. Ponnappa, General Manager of M/s. Flemingo (DFS) Private Ltd., Shri B.K. Senthil Kumar, and Shri J. Raveendran, employees of M/s. Flemingo (DFS) Private Limited, Shri V. Rajagopal, Driver and Shri John Williams, Manager of M/s. Flemingo (DFS) Pvt. Ltd., Chennai have also filed applications for settlement as co-applicants. 2. The applications were admitted vide this Bench s Admission Order No. 09/2007-Cus., dated 21-5-2007. The facts of the case are given in the Admission Order. In the Admission Order, on the request of the applicant s Advocate, they were given 45 days time to examine the documents along with Revenue and come to a conclusion regarding any further liability that they could disclose. Subsequently, by a Petition dated 21st May, 2007, submitted that they completed their verification and would like to have the matter heard urgently as they were suffering great loss and extreme hardship in view of the pendency of these proceedings. 3. Accordingly, the matter was heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to prove that. By a simple visual examination, the Department cannot come to the conclusion that the signatures did not tally. There was nothing in the Show Cause Notice and in the Annexure to show how the Department came to the conclusion that the signatures were different. The Advocate further submitted that the requirements of regulations in paras 4.1, 4.4 and 4.5 of the Circular were all complied with. Under para 5.2, there was a requirement that the internal audit department of the Custom House should carry out checks regularly on the stocks and should verify the sales. During their various checks, no questions were raised and no allegations of forgery were made. Further, the regulations required that the goods sold from the duty free shops shall be delivered on board the ship under escort. There is no allegation that this was not done. The Show Cause Notice has alleged that the bond officers have signed the escort report only on a weekly basis. No such statements of the bond officers have been made available to them. Further, even according to regulations, the purchases made during the course of the day shall be delivered at intervals and it should be delivered under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e escort officers have already admitted that they were giving escort reports on a periodical basis. Besides this, the applicant cannot take shelter under the audit done by the Department because the violations done by them were beyond the scope of audit. He further submitted that they have done a meticulous investigation and in 1246 bills they found that the signatures of the buyers tallied with those available with the Department and therefore, they did not include them for demanding duty. In 3004 bills, the signatures did not tally and hence, the duty was demanded. It was the duty of the applicants to ensure that they verified the documents which were available with the buyers. Had they done so, they could have easily found out the correct signatures of the buyers. Therefore, the Department stated that the entire duty demand was correct and no immunity should be granted to the applicants. 10. We have considered the submissions on either side. We find that the dispute at present is with regard to the allegation that in respect of 3004 cash bills, the signatures of the buyers did not tally with the signatures available with the Department. Therefore, the investigation concluded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slightly from place to place. Further, in the purchase bill at a shop, the buyer may not take adequate care to ensure that he has put his correct signature on the bill. Merely alleging the mismatch on the basis of visual examination without any supporting documents or expert opinion would be unfair and untenable as contended by the applicants. It is particularly so in view of the fact that the applicants have complied with all the other requirements under the facility circular issued by the Department for the operation of the duty free shop. There is no dispute that all the details required as per the circular have been mentioned in the Bills. There is also no dispute that these persons were eligible for buying the goods from the duty free shop. There is no doubt that the amounts have been collected in foreign exchange and remitted as required. 12. The submission of the Revenue that in those bills where they found that the signatures were tallying with those in the declaration, they have not included them for demanding duty would not prove the allegation. It is a matter of settled law that when an allegation is made, the onus is on the Department to prove it beyond doubt and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all the sales under the disputed cash memos were made to eligible persons and there is documentary evidence to prove that they have been placed on board the vessel. 14. The applicant company has also pointed out that their operations were subject to audit by the Department. The Revenue has pleaded that the violations alleged in the Show Cause Notice were beyond the scope of audit. Even admitting this contention, there is no doubt that the audit department did not find any defect in the records kept by the duty free shop. Under these circumstances, we hold that there is no evidence to prove the allegation with regard to the 3004 cash bills under dispute and there is no evidence to indicate that there was any departure from the regulations warranting demand of duty in respect of these sales. 15. In the light of the above, we hold that the total liability of the applicants is the amount admitted by them, viz., Rs. 82,25,502.45. The applicants have pleaded for various immunities including immunity from interest, fine, penalty and prosecution. We find that the admitted amount of Rs. 82,25,502.45/- pertains to more than one year. Therefore, we hold that the applicant should pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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