TMI Blog2011 (6) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... -6-2011 - Hon'ble Mrs. Archana Wadhwa, Member (Judicial) Hon ble Dr. P. Babu, Member (Technical) Appellant : Shri P.M. Dave, Shri Akshay Anand, Shri Devashish Mitra, Shri Paritosh Gupta, advocates Respondent : Shri K.M. Mondal , Consultant Per : Mrs. Archana Wadhwa; All the appeals are being disposed off by a common order as the issue involved is identical. Vide various impugned orders the Commissioner of Customs, Kandla has imposed penalties on the various appellants in terms of Section 112(a) of the Customs Act, 1962. The details of the penalties imposed and the impugned orders are being reproduced below :- Name of Party and Order in Original No. vide which penalty imposed. Amount of penalty 1) Kandla Clg. Agency Pvt. Ltd. 2) Shanti Lal Jain, (Director of KCAPL) 3) Prakash 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) Shantila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rakash Charia OIO No. KDL/COMMR/83/08-09 dtd. 31/03/2009 Rs. 10 Lakhs Rs. 1 Crore Rs. 5 Lakhs Rs. 25 Lakhs Rs. 25 Lakhs 1) Kandla Clearing Agency Pvt. Ltd. 2) Shantilal Jain 3) Dev Kumar Kapta 4) Rajkumar Mundra OIO No. KDL/COMMR/86/08-09 dtd. 31/03/2009 Rs. 5 Lakhs Rs. 50 Lakhs Rs. 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. Afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granules against tempered advance licenses. He submits that the matters were earlier remanded by the Tribunal to Commissioner for observing principles of natural justice. During the course of de-novo proceedings, they made a request to the adjudicating 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 documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the DRI are liable to be held as having been issued without jurisdiction. He submits that though some of the appeals were earlier remanded to Commissioner for reconsideration of the said issue of jurisdiction, the same does not 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts will not be of any use to the appellants inasmuch as the allegations are as regards the tempering of the same. As such, we fully agree with the learned advocate that the tempered advance licenses which stands relied 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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