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TMI Blog2011 (6) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... h Charia, (License Broker) OIO No. KDL/COMMR/30/09-10dt. 26/02/2010 Rs. 10 Lakhs Rs. 25 Lakhs Rs. 50 Lakhs 1) Kandla Clg. Agency Pvt. Ltd. 2) Shanti Lal Jain 3) Prakash Charia OIO No KDL/COMMR/31/DENOVO/09-10 dtd. 26/02/2010 Rs. 5 Lakhs Rs. 5 Lakhs Rs. 10 Lakhs 1) Dev Kumar Kapta (Employee of KCAPL) 2) Shantilal Jain 3) Kandla Clg. Agency Pvt. Ltd. 4) Pravin Bhatt & Sons (CHA) 5) Jitendra P. Bhatt (Partner of CHA) 6) Raj Kumar Mundra OIO No KDL/COMMR/07/09-10 dtd. 23/7/2009 Rs. 1 Lakh Rs. 2 Lakhs Rs. 2 Lakhs Rs. 2 Lakhs Rs. 2 Lakhs Rs. 1 Lakh 1) Kandla Clearing Agency Pvt. Ltd. 2) Raj Kumar Mundra (Broker for sale of goods) OIO No KDL/COMMR/04/09-10 dtd. 30/06/2009 Rs. 1 Crore Rs. 1 Crore 1) Kandla Clearing Agency Pvt. Ltd. 2) Shantilal Jain 3) Dev Kumar Kapta 4) Raj Kumar Mundra OIO No KDL/COMMR/06/09-10 dtd. 15/07/2009 Rs. 1 Lakh Rs. 1 Lakh Rs. 30,000/- Rs. 50,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Lakhs Rs. 10 Lakhs 1) Kandla Clearing Agency Pvt. Ltd. 2) Shantilal Jain 3) Dev Kumar Kapta 4) Rajkumar Mundra OIO No. KDL/COMMR/87/08-09 dtd. 31/03/2009 Rs. 2 Lakhs Rs. 2 Lakhs Rs. 50,000/- Rs. 50,000/- 1) Kandla Clearing Agency Pvt. Ltd. 2) Shantilal Jain 3) Dev Kumar Kapta 4) Rajkumar Mundra OIO No. KDL/COMMR/88/08-09 dtd. 31/03/2009 Rs. 5 Lakhs Rs. 3 Lakhs Rs. 1 Lakh Rs. 1 Lakh 2. After hearing both the sides for a considerable time, we find that penalties stands imposed upon the appellants who are partners/ directors, CHAs or their employees and brokers for obtaining licenses or brokers in selling the duty free imported goods. 3. As per the facts on record, HDPE and PP granules were imported free of duty by various importers against the advance licenses. After procuring the goods, the same were sold by them in the open market. As a result of investigations by the DRI, it was found that these advance licenses were actually issue by the DGFT to different entities like M/s. Bata India Limited, M/s. Tea Packers (I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating authority to supply relied upon documents. However, instead of supplying the alleged tempered advance licenses, so as to enable the appellants to examine the same and put their defence, they have been supplied the original advance licenses. He submits that inasmuch as the said advance licenses reflects upon the name of the original licensee as also description, value and quantity, as originally reflected in the said documents, the same are of no use to the appellants. As per the Revenue, the allegation is that said advance licenses were tempered and as such, it is necessary that for the appellants, in their defence, to look at the said tempered documents so as to find out as to whether such tempering was visible to the naked eye and if at all the CHA, by looking at said documents, could make out that the same were tempered. He also submits that the Customs Officers cleared the consignment of granules against the same tempered documents. This fact shows that the alleged tempering, if at all, was not visible to the naked eye and the fact that the document was tempered, could not be made out by just looking at the documents, in which case the CHAs and other appellants cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand accepted by the Commissioner in terms of the declaration of the law in some of the decisions, which he fairly agrees was subsequently upheld by the Larger Bench in the case of Konia Trading Company vs. CC, Jaipur -- 2004 (170) ELT 51 (Tri. LB). However, he submit that in view of the latest declaration of the law by the Hon'ble Supreme Court in the case of Saiyed Ali (referred supra) and circular issued by the Board dated 15.4.2011, the Larger Bench judgment is no longer relevant on the said issue. In view of the above, he makes a prayer for setting aside the impugned orders and remand the matter to Commissioner for fresh decision, after supplying them the copies of the relevant relied upon documents and to consider their request for cross-examination. 9. Countering the arguments, learned Senior Advocate Shri K.M. Mondal appearing for the Revenue submits that in the Hon'ble Supreme Court decision in the case of Saiyed Ali, the show cause notices were issued by the Commissioner (Preventive) and was adjudicated by him, whereas in the case of Konia Trading Company, the show cause notice was issued by the DRI and adjudicated by the jurisdictional Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon in the show cause notices, are required to be supplied to the appellants. 12. As regards their request for cross-examination, we find that same is required to be considered in the facts and circumstances of each case. Inasmuch as the customs officers have themselves cleared the goods against the tempered advance licenses, the appellants request for cross-examination of such officers may not be unjustified. As such, we are of the view that wherever possible, the adjudicating officer would allow the cross-examination of the officers. 13. In view of the above discussion, we set-aside the impugned order and remand the matter to adjudicating authorities to supply the documents i.e. tempered advance licenses to the appellants and to allow them cross-examine the officers, wherever possible, as we are aware of the practical difficulties of the officers not being available. As we have already remanded the matter on this ground, we would also like the Commissioner to take into consideration the latest decision of the Hon'ble Supreme Court in the case of Saiyed Ali (referred supra) as also the Board circular dated 15.4.2011 and/ or any subsequent development on the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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