TMI Blog2006 (8) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Rs. 10.00 lakh (Rupees ten lakh) on the appellant company of the Sole Proprietor under Section 114(i) of the Customs Act, 1962; (iii) Confiscation under Section 111(o), of the goods imported against six DEPB Licences so obtained in lieu of these exports made on these twelve shipping bills having DEPB Credit of Rs. 1,00,75,882.00 (Rupees one crore seventy-five thousand eight hundred and eighty-two). Since the goods were not available for confiscation, redemption fine of Rs. 25.00 lakh (Rupees twenty-five lakh) was offered; (iv) Ordered for recovery of the excess DEPB Credit of Rs. l,00,35,562.00 (Rupees one crore thirty-five thousand five hundred sixty-two) along with the interest accrued thereon, to be realized from the appellant company under Section 28 of the Customs Act, 1962; (v) Imposition of a penalty of Rs. 1,00,35,562.00 (Rupees one crore thirty-five thousand five hundred and sixty-two) on the Proprietor of the appellant company under Section 114A of the Customs Act, 1962; (vi) Imposition of a penalty of Rs. l0,00,000.00 (Rupees ten lakh) each on the three other noticees who are not before us now. 1.2 After hearing both sides and considering the materials on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for determination of the Present Market Value (PMV) of the said goods. Statements of various persons including Sri Nirmal Saraswat, a partner of M/s. Nirpra Industries (Supplier of the said goods to the appellant company) and Sri Kishan Goswami were recorded. Sri Nirmal Saraswat initially stated that he supplied the goods. Thereafter, he denied this admission, but such denial was retracted before the Magistrate. Sri Kishan Goswami stated that he was in noway connected with procurement, sale or export of the said goods. Statements of about ten other persons were recorded under Section 108 of the Customs Act. Enquiries were made by Jaipur Customs wherefrom the said goods were made by Customs and Central Excise Authorities at Siliguri, the place of Sri Ajay Ojha and report was obtained. Enquiry was also conducted in Singapore by Indian High Commission where the foreign buyer is situated and where the goods were shipped. Statements of Accounts of the appellant company, Nirpa Industries (Supplier of the appellant company), M/s. Madho Prasad Mahabir Prasad (another supplier of glass-beads), S.K. Impex, Rahul Industries, B.K. Trading Company, C.G. Impex, Kumar Trading, Akay Exports, Cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in any way connected with and had no role in procurement/purchase of goods or their export. Sri Ajay Ojha in his reply dated 10-8-2000 to the first SCN confirmed having supplied glass- beads to Sri Nirmal Kumar Saraswat (supplier of goods to the appellant company) and having received full sale price thereof. He further contended that it was a domestic sale from a domestic supplier to a domestic purchaser and neither any provision of Customs Act/FERA/Foreign Trade Regulation Act was involved nor he violated any provisions of law. (g) Personal hearings of first SCN were held on 26-12-2000, 4-1-2001, 6-2-2001 and 7-2-2001. In course of these hearings the appellant company, its proprietor was represented by their advocate. The supplier, Nirmal Saraswat (partner of Nirpra Industries) appeared in person before the Commissioner and again confirmed having supplied the goods to the appellant company at the declared price and filed certified copies of various documents relating to the transaction, namely, the Contract for Sale, Invoices, Payment Receipts etc. Sri Kishan Goswami also appeared in person and reiterated that he had no role of any nature whatsoever in procurement/pur- chase/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (viii) Sample of the goods exported by the appellant company was not shown by the Customs Authorities either to any trader or to any expert valuer. (ix) The period of limitation for review/revision of the final assessment has already been over and it is not open to the Customs Authorities to reopen the said final assessments and/or adjudications already made. (x) In terms of the circulars issued by the Central Board of Excise and Customs, the Customs Authorities are even otherwise estopped from contending anything contrary to the PMV already accepted by the Department during final assessment. (xi) Apart from the aforesaid, various other submissions were made by the appellant company and it was submitted that the Show Cause Notice was wholly illegal and invalid. (i) In the said earlier proceedings, in support of the transaction value, the appellant company inter alia relied on the following :- Sl. No. Particulars Export price USD (i) Order of Adjudication bearing No. 2/99 dated 16-10-1999 in case M/s. Rainbow International passed by Delhi Customs. USD 165 (ii) Export Price/FOB of the noticee in the Instant case U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been decided in favour of the assessee concurring the findings of the Commissioner, Tribunal and the Hon'ble Supreme Court. The reasons for the new evidences now considered to be substantive, as is evident from para 13.1 of the impugned order, are reproduced below :- "13.1. It therefore appeared that, these new evidences which were substantive in nature were good enough to have a fresh look into the case in terms of the Hon'ble Madras High Court judgment in the case of Union of India v. K. Siraj reported in 1993 (65) E.L.T.-25(Mad.)." 1.5 The Commissioner's Order relies on the statement of one Shri Ajay Kumar Ojha recorded on 26-8-2002 to bring on record, the conduct of Shri Nirmal Saraswat, and non-supply of any goods to this person, Shri Saraswat is confirmed. On perusal of this statement as recorded in the order, it is apparent that no statement of Shri Nirmal Saraswat has been recorded as regards this new material now brought on record by the statement of Shri Ajay Kumar Ojha. The earlier statement of Shri Nirmal Saraswat of having supplied the goods to the appellant company has been accepted by the Commissioner while adjudicating the 1st SCN. No appeal was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the tune of Rs. 1,00,35,562/- [Rs. 1,00,75,882/- - Rs. 40,320/-]." Therefore, the Commissioner is not relying upon this revelation regarding the procurement of 7 MTs of glass-beads at the rate of Rs. 125/- per Kg. from Shri Anil Kumar Mahensaria, while arriving at the figures of valuation-claim of DEPB. When the Commissioner himself is not accepting this version of Shri Kishan Goswami, it is difficult for us to accept the same now recorded from Shri Goswami. The other aspect of his statement as regards Shri Bharat Mahensaria, the Proprietor of the appellant company having exported about 7 MTs in June, 1999 out of the said 18.2 MTs procured by him, cannot be accepted because the statement made by Shri Kishan Goswami in the beginning, as recorded in para 7.1 of the impugned Order to the effect - " ……..he did not have any role in export of glass-beads at any point of time by any exporter or himself. He also did not have any role in the purchase/sale of glass-beads…….", would be false. It is difficult to make out which part of the statements made by Shri Goswami is false. If we accept the opening paragraph as relied upon by the Commissioner, then it would be evident and clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed by him. On this statement, the appellant-company's submissions are as follows:- "(a) The Appellant states that the following price lists, print outs from the Customs, adjudication order of Delhi Customs, invoices and shipping bills of exports were already on record during the adjudication of the 1st SCN :- (i) Catalogue and price list of Hi Fashion, Delhi showing price upto $139.50 per Kg.; (ii) Catalogue and price list of Master Stroke Private Limited, Delhi; (iii) Computer print out from Bombay Custom showing export price $119.98 per kg; (iv) Export shipping bills and invoices of Neelam Exports, Banaras; (v) Price list of Motibala Industries; (vi) Statement of six persons said to be local agents, traders of glass beads. (vii) Invoice shipping bill of Banaras Beads Limited. (viii) Investigation report of CC (Port) dated 21-9-1999 sent to Board confirming no overvaluation in export of glass-beads with the price range of Rs. 6,000-6,500 per kg. (ix) Order of adjudication bearing No. 2/99 dated 16-10-1999 in case of Rainbow International passed by Delhi Customs confirming the price of $ 165 per kg. When the export invoices and shipping bills of Banaras Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er kg. and more." Considering the statements, documents and the submissions made, we find that there is no material of substantive nature now brought on record by the efforts of recording the statements from Shri Ashok Kumar Gupta, as all these materials were available and relied upon in the first show cause notice and which has been considered and a decision in favour of the appellant company has been taken after due consideration. 1.8 As regards the other new substantive evidence of Sales Tax Way Bills and other purported evidences mentioned in paras 9, 10, and 11 of the second show cause notice and para 9 of the Order impugned, the same pertains to a period of March, 1999. The present exports were made in June, 1999 and there is no material on record to relate the export of the goods obtained/mentioned in these documents by the present exporters. In fact, the only evidence relied upon in the second notice is the statement of Shri Kishan Goswami relating to the goods of 18 MTs under export obtained from Shri Anil Kumar Mahensaria, which has not been accepted by the Commissioner adjudicating the present proceedings and has been found to be of no evidentiary value. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns made by the Revenue, having been rejected. In this view of the matter, we cannot find reliance on the Hon'ble Madras High Court's decision to be relevant and empowering the Department to initiate and reopen the present proceedings. The judgement is found to be permitting the enquiry under Sections 107 and 108 of the Customs Act, after issue of the Notice. They did not consider the issue as to whether an earlier notice which was settled by the Commissioner, Tribunal -and the Supreme Court by the concurrent findings, could be reopened or not. 2.2 The exports were effected on provisional assessment basis and have been finalised thereafter. No market survey/report of any kind has been obtained by showing the samples to experts challenging the valuation is brought on record, to upset the finalisation of the Assessment Order. The glass-beads have been demonstrated to be having a price spread over a wide-band width. Based upon the material as relied upon by the Revenue themselves and enquiries made by the Commissioner and reported to the Board, a demand/supply position would influence the prices considerably. The grounds of reopening the finalised assessments did not exist here and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 662 (Tri.), the Tribunal had held that a declaration for DEPB is not a declaration which should be read as a prohibition under the Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992 since that scheme of DEPB has been announced under powers of Section 19 of the Foreign Trade (Development and Regulation) Act, 1992 and not under Section 2 of the said Act. Since the prohibitions under the Customs Act, 1962 and or any other Act could not be found, we find no merits in the plea of the ld. D.R." Therefore, we find no reason to uphold the confiscation of the goods under the provisions of Section 113(d) of the Customs Act, 1962 for exports under DEPB claim. In the circumstances, the imposition of penalty on the present appellant company and that of redemption fine as arrived at, are not warranted. In any case, separate penalties on the Proprietor as also on the Proprietor Firm as ordered by the Commissioner, cannot be upheld. 2.4 The Commissioner totally erred in holding that the goods imported against the said six DEPB licences were liable to confiscation under Section 111(o) of the Customs Act and on that basis, demanding redemption fine of Rs. 25.00 la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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