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TMI Blog2011 (2) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... p; Having found that the said order dated 30.3.2007 had been passed without following the principles of natural justice, this Bench set aside that order and remanded the case to the Commissioner for fresh decision. The order impugned in the present batch of appeals was passed by the Commissioner in the second round. 3. In these appeals also, the main grievance raised by the appellants is that natural justice was denied to them. The learned counsel representing M/s Mangtani Exports (India) Pvt Ltd (MEPL for short) and their co-appellants has given an account of the facts of the case. MEPL are merchant-exporters. They exported blended fabrics during the period January 1992 to May 1994 under DEEC Scheme, in anticipation of Quantity-Based Advance Licences, for which they had submitted applications to the Director-General of Foreign Trade (DGFT). In the relevant Shipping Bills, they described the goods as 'DYED/PRINTED POLYESTER BLENDED FABRICS' and also furnished the percentage composition of the goods which were manufactured out of Polyester Filament Yarn (PFY) and/or Viscose Staple Fibre (VSF) besides minor inputs like dyes. MEPL obtained seven Advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; It was that order which was set aside by this Tribunal in the first stage of litigation. Pursuant to our remand order, the learned Commissioner passed the impugned order. 5. The learned counsel has clarified that MEPL also made some imports under a few of the advance licences. It is submitted that, as permitted under para 127 of the Handbook of Procedures (Vol I) 1992-97 under the relevant Exim Policy, such licences were only partly transferred to others for import of PFY (raw material) and the same were retained by MEPL for the purpose of import of other goods. It is further pointed out that the demand of duty on MEPL and others is in respect of the raw materials imported under all the seven advance licences. This demand of duty is based on the erroneous finding that MEPL had obtained the advance licences fraudulently on the basis of E.P. copies of Shipping Bills wherein the percentage composition of the export goods had been misdeclared. The learned counsel further points out that, while quantifying such demand of duty, the learned Commissioner lost sight of the fact that there was no discrepancy, in regard to the composition of the goods, bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant features of the DEEC Scheme, the learned counsel submits that, in the facts of this case, the burden to establish compliance with the conditions of Notification No. 204/92-Cus cannot be imposed on M/s Banaswara Syntex Ltd, who are only transferee of the aforesaid licence. The company imported the raw material under the above advance licence bearing DGFT's endorsement of transferability. It is not the case of the Revenue that any material not authorized for import was actually imported by the company. In the circumstances, according to the learned counsel, the demand of duty on her client is unsustainable. In this connection, she relies on the decision in Goodluck Industries vs Commissioner of Customs, Calcutta 1999 (108) ELT 818 (Tri) affirmed by the Supreme Court in 2000 (120) ELT A-66 (SC). She has also adverted to an apparent contradiction of findings in the impugned order. It is submitted that, in the context of considering the question whether a penalty should be imposed on the company, the learned Commissioner held that they had no role in the manipulation of export documents. There is no adverse finding against the company in relation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od case for the Revenue. The learned SDR has also submitted, albeit feebly, that the rules of natural justice were substantially complied with by the Commissioner. 11. It is on record that the case was apparently heard by the predecessor-in-office of the Commissioner who passed the impugned order. The record of personal hearing maintained by the predecessor-in-office was apparently not carefully considered by the respondent-Commissioner. We are surprised to note that the learned Commissioner imposed a hefty personal penalty on a dead person (Kabir Kewalram Mangtani) even though the death of Kabir Kewalram Mangtani was intimated by the other noticees. This is one glaring instance of non-application of mind. We have also found that, though no discrepancy in respect of percentage composition of export goods was found between Shipping Bills and the corresponding excise documents, in many cases, the learned Commissioner proceeded to demand duty on the input related to such Shipping Bills also, and, that too, not only from the importers but from CHAs and others also, another instance of non-application of mind. The learned Commissioner clearly noted that the importers had no role in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's decision dated 26.8.09. It is also on record that, in a letter dated 28.8.09, MEPL's advocate requested the Commissioner for opportunity of being heard. This letter reads thus: "Kindly refer hearing in the above matter held on 26th August 2009. After the issues regarding cross-examination and re-test are decided, kindly grant a personal hearing to enable me to address you on the merits of the case with reference to copies of Shipping Bills and Test Reports which are relied upon in the Notice." This letter carries dated seal of the Commissioner's office indicating that it was received by the Commissioner on 26.8.09. Obviously, the adjudicating authority chose to pass the final order on 31.8.09 without heeding the above request of the counsel for MEPL. Thus, the manner in which the case was adjudicated by the Commissioner clearly shows that rules of natural justices were flouted. 13. The learned counsel for MEPL has also contended that the non-supply of copies of test memos amounted to negation of natural justice. We do not agree. The samples of the export consignments were drawn in the presence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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