TMI Blog2015 (1) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing penalty on M/s DFL is concerned. It may incidentally be mentioned though that for recovery of duty on the impugned goods which were cleared without payment of duty but not exported, there is no time-bar as such clearances are covered by the bond which was executed by M/s DFL under which also such duty is recoverable. M/s DFL is a legal person, it is evident from the foregoing that this entire operation was done with the knowledge and connivance of Shri Vijay Vishwaroop , Director . He has not denied this fact at all and has only said that the goods were exported through merchant exporter M/s Super Fabrics. He has admitted that the impugned goods were covered under the B-17 bond executed by M/s DFL, they were cleared without payment of duty under ARE-1s not for transport directly to the port for export as is the requirement, but for transport to Surat for M/s Super Fabrics and M/s DFL/ Shri Vijay Vishwaroop had no reason whatsoever to believe that M/s Super Fabrics had any locus standi to source/receive goods duty free. He allowed the goods to be cleared on ARE-1s of Surat while under ARE-1s the goods have to be directly sent to port. He was aware that S/ Bs were got pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was confirmed against M/s Dewas Fabrics Ltd. (DFL) and penalty of ₹ 10 lakhs each was imposed upon M/s Super Fabrics, Shri Suresh Sharma, Shri Vijay Vishwaroop, and Mohd. Shoaib Sheikh. These appeals have been filed by M/s DFL and Shri Suresh Sharma and Shri Vijay Vishwaroop and therefore this order does not have any bearing in relation to the penalties imposed upon M/s Super Fabrics and Shri Md. Shoaib Sheikh. 2. M/s DFL are a 100% EOU. They exported polyester dyed and grey fabrics under 6 ARE-1 nos. 1/2002-2003 to 6/2002-03 all dated 9.4.2002. They submitted proof of export in the form of (photo) copies of the relevant documents. On perusal of the said proof of export, it was revealed that while the goods were cleared from the factory on 9.4.2002, the (14) shipping bills claimed to be related thereto were noted between 5.9.202 to 18.9.202 at Calcutta Custom House. On enquiry, the concerned CHA whose seals appeared on the shipping bills categorically denied having dealt with the said documents or the goods. They also found that seals marks on the S/ Bs were not identical to their seals. The enquiries at the port also revealed that the goods claimed to have been cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not agree with the averments of Shoaib Sheikh. 5. Shri Vijay Vishwaroop , Director of M/s DFL in his statements dated 19.1.2004 and 4.10.2004 admitted that. (i) He has not submitted original proof of export in respect of the said ARE- ls : (ii) He does not possess the original proof of export which may be in possession of merchant exporter M/s Super Fabrics; (iii) He does not have residential address and phone number of Sheikh, proprietor of M/s Super Fabrics; (iv) He does not know the name or address or contact details of the foreign entity to which the exports were made. (v) He does not have copy of export orders received for the said consignments; (vi) He also admitted that the said goods were removed under the B-17 bond executed by DFL and the responsibility to produce the original proof of export clearly lies on DFL/him. 6. The appellants in their appeal and during hearing have also contended that the case is made on the basis of statements of various persons and they were not allowed their cross-examination and therefore their statements cannot be relied upon for the purpose of holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter of right, the jurisprudence on this issue is well settled that (i) statement against assessee cannot be used without giving them opportunity of cross-examining deponent as held by Delhi High Court in case of Basudev Garg Vs. CC-2013 (294) ELT 353 (Del.); (ii) Right to cross-examination in quasi-judicial proceedings can be taken away in circumstances specified in Section 9D of Central Excise Act, 1944 as held in J K Cigarettes Ltd Vs. CCE - 2009 (242) ELT 189(Del.), and we shall scrupulously follow this settled position in law. 10. It has been brought out earlier that inability to produce valid proof of export itself makes M/s DFL liable to pay duty (along with interest) leviable on the impugned goods. In this case, it is also seen that M/s DFL cleared the goods without payment of duty not for being taken to port for export but for being taken to Surat to the consignee M/s Super Fabrics. The goods were cleared to be taken to Surat as per the ARE-1s and also as per the statement of Shri Vijay Vishwaroop , Director of M/s DFL. This act of M/s DFL was illegal as M/s Super Fabrics had no locus standi to source the goods duty free and M/s DFL had no authority to consign the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnivance of Shri Vijay Vishwaroop , Director . He has not denied this fact at all and has only said that the goods were exported through merchant exporter M/s Super Fabrics. He has admitted that the impugned goods were covered under the B-17 bond executed by M/s DFL, they were cleared without payment of duty under ARE-1s not for transport directly to the port for export as is the requirement, but for transport to Surat for M/s Super Fabrics and M/s DFL/ Shri Vijay Vishwaroop had no reason whatsoever to believe that M/s Super Fabrics had any locus standi to source/receive goods duty free. He allowed the goods to be cleared on ARE-1s of Surat while under ARE-1s the goods have to be directly sent to port. He was aware that S/ Bs were got processed about five months after the date of ARE-1s (i.e. the date of clearance of goods duty free) and he has admitted that he does not have the valid proof of export for the impugned goods. He has not questioned (and rightly so) the documentary evidence of non-export in the form of Export General Manifests which were part of the RUDs (though as made clear earlier, the onus was on the appellants to produce valid proof of export and not on the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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