TMI Blog2014 (3) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... t open to the Commissioner to straightway rely on the said report as substantive admissible evidence for the purpose of holding the Appellants to be in violation of Section 8 FERA. A perusal of the AO shows that it was based entirely on what was stated in the SCNs issued under the CA (Customs Act) and there was no investigation to verify the particulars set out in the said documents. It was unsafe for the AO to proceed on the basis of the above documents to hold the Appellants guilty of contravention under Section 8 (1) FERA. - order set aside - decided in favor of appellant. - Crl. A. No. 142 of 2008, Crl.A. No. 143 of 2008, Crl.A. No. 144 of 2008 - - - Dated:- 12-3-2014 - S. Muralidhar,JJ. For the Appellant : Mr. R.K. Handoo with Mr. Yoginder Handoo, Mr. Manish Shukla, Mr. Aditya Chaudhary and Mr. Yogesh Sharma, Advocates. For the Respondent : Mr. Sachin Datta, CGSC with Mr. Vikram Aditya Narayan, Advocate. JUDGMENT 1. These three appeals are directed against the common judgment dated 19th November 2007 passed by the Appellate Tribunal for Foreign Exchange ( AT ) dismissing the Appellants Appeal Nos. 352 of 2004, 353 of 2004 and 355 of 2004 respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of the goods invoiced. It was further stated that MEH had made payment to Gen Diesel of the low value invoice totalling 6840.40, by bank transfer and that the payment of the balance was made over a period time. The true value invoice was sent directly to MEH by Gen Diesel. It was further disclosed that Gen Diesel also supplied to the associated companies of MEH, i.e., JEC and IAS. The summary of sales made to these three companies since 1994 was enclosed as an Annexure to the report. The invoices pertaining to the transactions were also enclosed. It was further stated that the report pertaining to export made by M/s. Mayphil, UK to M/s. IAS would be sent on completion of the investigation. Meanwhile, it appears that the customs authorities had also started investigating into the import of tractor parts by MEH from Gen Diesel Products Limited and by IAS from M/s. Mayphil, UK. The DRI by its letter dated 3rd February 1998 wrote to the Additional Commissioner of Customs, New Delhi enclosing a copy of the letter dated 6th August 1997 received from the First Secretary (Trade) to the High Commission of India, London. Proceedings under the Customs Act 5. The Customs Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia, London for attestation of copies of invoices obtained from UK companies and for permission to use the documents in official proceeding in India. The HM Customs inter alia reported as under: As I have previously made clear unless the material is obtained through a Commission Rogateire or Letter of Request we are unable to consent to its use in legal proceedings and are bound by the voluntary terms under which the material was originally acquired. To do other than this would contravene the provisions of the Criminal Justice (International Cooperation) Act, 1990. 8. Show cause notices ( SCNs ) were issued on 11th October 2000, 11th December 2000 and 5th January 2001 to the three firms regarding the undervalued invoices of the importer to clear the goods from UK and Italy. This was followed by another SCN dated 20th April 2001 to M/s. MEH referred as Importer A , M/s. IAS referred as Importer B and M/s. JEC referred as Importer C under Section 28 read with Section 28 AB of CA asking them to show cause why the differential duties together with interest should not be recovered; Importer B was required to show cause as to why the goods should not be confiscated unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter and agreed to discharge the differential duty liability in terms of the SCNs. It was again stated that the Appellants were not in a position to make any confession or admission of undervaluation and yet with a view to settle the matter and not to enter into any legal dispute, they had accepted the duty liability. 11. The SA held, in para 10 of the final order, as under: 10. We have carefully gone through the facts of the case and the submissions made before us. So far as the show cause notice dated 27th November 2001 referred to in para 9 above, this show cause notice is not a part of the case before us. The Applicant is free to file an application for this show cause notice in accordance with law. We are satisfied that the Applicant have made full and true disclosure of their duty liability as demanded in the show cause notices mentioned in Annexure A to this order. The Applicants have discharged the entire duty liability within the time required under the Admission Order. We are also satisfied that they have fully cooperated in the proceedings before the Commission. They are accordingly entitled to grant of immunities under Section 127-H of the Act. We accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by the final order of the SA. Only because the SCNs issued under the CA formed the basis of the proceedings under FERA, the closure proceedings under the CA by the passing of the final order of the SA did not mean that the ED was relieved of the burden of proving the allegations noticed in the SCNs. 15. It must be noticed at this stage that the SCNs issued under the CA have been verbatim reproduced not only in the SCNs under FERA but also large parts of it figured in the AO. It appears that there was no independent investigation undertaken by the ED of the allegations contained in the SCNs issued under the CA. Merely because the SCNs issued under the CA ended in a final order passed by the SA would not ipso facto mean that those allegations were proved for the purposes of the violation of Section 8 (1) FERA as well. Applicability of FERA 16. As far as the FERA proceedings are concerned, the submission of Mr. R.K. Handoo, learned counsel for the Appellants, is that since the SCNs were issued under FERA on 16th May 2002 after the repeal of FERA and enactment of the Foreign Exchange Management Act ( FEMA ) and further since the Adjudicating Officer was himself authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or against him and any other person who is proceeded against jointly with him, the court or the adjudicating officer, as the case may be, shall- (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person s handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document. 19. It was incumbent under Section 72 (ii) FERA read with Clause (a) thereof for each of the documents gathered from outside India to be authenticated by the concerned officers of the Indian High Commission in both the UK and Italy. In the present case admittedly documents were simply forwarded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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