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2016 (1) TMI 1051 - CESTAT MUMBAI

2016 (1) TMI 1051 - CESTAT MUMBAI - TMI - Fraudulent claim of export incentive schemes viz. DEPB, DEEC and rebate - Department's case is that these companies have claimed to have exported various chemicals, pesticides and dyes, however in fact there was no export of the declared chemicals/dyes/pesticides and the goods declared in the shipping bills have not been exported and in their place some unknown chemicals were exported.

Held that:- At the time of hearing, the plea taken by the .....

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ailable cannot be confiscated and redeemed. The Commissioner will no doubt consider this aspect legally. At this stage, we do not make any observation on the applicability of extended time period under Section 28 (1) of the Customs Act. However this matter shall also be considered by the Commissioner after fixing the duty liability.

Imposition of penalties on the High Sea Sellers. - varying amounts of penalty imposed on the various high sea sellers depending on their role in availmen .....

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ral Excise duty when the goods are still on High seas. It cannot be held that because the goods will be diverted and not used by the companies after clearance from Customs, the offence already stands committed on the sale of the goods on High seas. - the question of imposition of penalty under Rule 26 of the Central Excise provisions on goods on high seas does not arise.

Levy of penalties on the indigenous suppliers - Held that:- the supplier has certainly knowingly removed the excisa .....

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ed:- 29-9-2015 - MR. P.S.PRUTHI, MEMBER (TECHNICAL) AND MR. RAMESH NAIR, MEMBER (JUDICIAL) C/87785/13-MUM, C/87839/13-MUM, C/87866/13-MUM, C/87879/13-MUM, C/87902/13-MUM, C/87933/13-MUM, C/87934/13-MUM, C/87935/13-MUM, C/87990/13-MUM, C/88025/13-MUM, C/88026/13-MUM, C/88027/13-MUM, C/88028/13-MUM, C/88090/13-MUM, C/88091/13-MUM, C/88137/13-MUM, C/88619/13-MUM, C/88620/13-MUM, C/87746/13-MUM, C/87789/13-MUM, C/87831/13-MUM, C/87838/13-MUM, C/87916/13-MUM, C/87926/13-MUM, C/87927/13-MUM, E/87829/1 .....

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tive schemes viz. DEPB, DEEC and rebate by six companies (hereinafter referred as companies) viz M/s Cosmos Chemicals and Intermediates, M/s Colosperse, M/s Qualigance, M/s Chevrolet, declared as manufacturer exporter and M/s Clarity Intermediate & Pesticides and M/s Corporate Chemicals Intermediates declared as merchant exporters. Departments case is that these companies have claimed to have exported various chemicals, pesticides and dyes, however in fact there was no export of the declare .....

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testing the samples taken from the consignments and after recording the statement of the concerned persons, DRI seized the said 3 containers on 15.03.2004. They also found that the samples drawn by the concerned Central Excise officers supervising the factory stuffing of the said containers tested positive (i.e. found as 'Fenthion Tech'. During the course of further investigation it was found that one Mr. Asif Abdul Karim Bidiwala and Mr. Afzal Fazal Dalal floated the above firms which w .....

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e chemicals declared in the export documents, that the samples so replaced were then sealed and handed over to the Central Excise Officers, that the Central Excise Officers were however unaware of the said activities carried out by them. That, apart from mis-declaring the description of export goods, these exporters also inflated the FOB value of export goods and have claimed benefit of DEPB/DEEC against these exports. In some cases, so called manufacturer exporters have taken CENVAT credit wron .....

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as officers who supervised the drawl of samples of export goods in factory stuffing. During the course of further investigation, on scrutiny of the documents relating to the consignments exported by the said companies between 03.10.2002 to 06.10.2003, it was found that the appellant officers had examined 49 consignments, drawn samples and forwarded the same for record in the concerned Range office. Statement of 13 officers who examined the past consignments during the said period were recorded w .....

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y putting the samples in the thick envelopes, that thereafter the covers were sealed with brass seals of the range and wax, that the description of goods, ARE1 No., Container No., Central Excise bottle seal and shipping line bottle seal nos. were written on the envelopes and signature of authorized person/proprietor of the unit and merchant exporter where ever applicable and excise officers were appended to the envelopes. That all the particulars of ARE1, Central Excise invoices, packing list, c .....

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t of redemption fine. Commissioner also re-determined the FOB value of the export goods. He imposed penalty under Section 114 of the Customs Act, 1962 on the exporters, their partners, proprietors and Central excise officers. (ii) In the matter relating to import of goods under DEPB Scheme from various ports, Commissioner confiscated the imported goods under Section 111(o) of the Customs Act, 1962 with option to redeem the goods. He confirmed the demand of duty jointly and severally on the origi .....

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ned rebate along with interest from the exporters and has also imposed equal penalty under Section 11AC of the Central Excise Act, 1944. He also disallowed the pending claims of rebate and imposed penalty under Rule 26 of the Central Excise Rules, 2002 on the partner/proprietor of the manufacturing firms. (iv) Commissioner imposed penalty under Rule 26 of the Central Excise Rules, 2002 on the indigenous suppliers and High sea sellers who supplied/sold the indigenous/imported goods on which cenva .....

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epartmental Appeal - List F List A Central excise Officers (1) C/87992/13-Mum C. M. Tank Vs CC (Export) Nhavasheva (2) C/87993/13-Mum H. U. Mahyavanshi Vs CC (Export) Nhavasheva (3) C/87994/13-Mum D.M. Rana Vs CC (Export) Nhavasheva (4) C/87995/13-Mum V. D. Parmar Vs CC (Export) Nhavashev (5) C/87996/13-Mum H. N. Shaikh CC (Export) Nhavasheva (6) C/88018/13-Mum S.K. Jain Vs CC(Export) Nhavasheva (7) C/88241/13-Mum V. Srinivasan Vs CC (Export) Nhavasheva (8) C/88242/13-Mum K. N. Parmar Vs CC (Exp .....

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havasheva (6) C/87933/13-Mum Oxygen & Carbide Gas P. Ltd. Vs CC (Export) Nhavasheva (7) C/87934/13-Mum Sarvashreshtha Oil Industries Vs CC (Export) Nhavasheva (8) C/87935/13-Mum Sarvottam Vegetable Oil Refinery Vs Cc (Export) Nhavasheva (9) C/87990/13-Mum Kothari Brother Vs CC (Export) Nhavasheva (10) C/88025/13-Mum Prachi Exports Pvt. Ltd. Cc Vs (Export) Nhavasheva (11) C/88026/13-Mum Bril International Vs Cc (Export) Nhavasheva (12) C/88027/13-Mum Om Prakash Rahul Kumar Vs CC (Export) Nhav .....

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Prakash Solvex Vs CC Exp (Nhava Sheva0 (21) C/87838/13-Mum Shivani Oil Mills Vs CC (Export) Nhavasheva (21) C/87916/13-Mum Hindalco Industries Ltd. Vs CC (Import) Nhavasheva (22) C/87926/13-Mum Kwality Dairy (I) Ltd. Vs CC(Export) Nhavasheva (23) C/87927/13-Mum Rajhans Vegetable Oil Refinery Pvt. Ltd.Vs Cc (Export) Nhavasheva List C- Indigenous Suppliers (1) E/87829/13-Mum Sudershan Chemical Inds.Ltd.Vs CC (Export) Nhavasheva (2) E/87742/13-Mum M/S.Atul Limited Vs CC (Export) Nhavasheva (3) E/87 .....

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E/87603/13-Mum Bronze Chem Enterprise Vs CC (Export) Nhavasheva (6) E/87719/13-Mum Uniway Trading Pvt. Ltd.Vs CC (Export) Nhavasheva (7) E/87720/13-Mum Nageshwar Enterprise Vs CC (Export) Nhavasheva (8) E/87776/13-Mum Hero Dye Chem Industries Vs CC (Export) Nhavasheva (9) E/87811/13-Mum C.J.Shsh & Co. Vs CC (Export) Nhavasheva (10) E/88004/13-Mum Cosmos Plastics & Chemicals Vs CC(Export) Nhavasheva List E (1) E/87845/13-MUM Liladhar Parekh Vs CC (Export) Nhavasheva List F - Departmental .....

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f & Intermediates P.Ltd. (8) C/87961/13-Mum CC (Export) Vs Nhavasheva Shree Sai Prassana Trading Co. (9) C/87961/13-Mum CC (Export) Nhavasheva Vs Shree Saibaba Chemical Industries (10) C/87961/13-Mum CC (Export) Nhavasheva Vs Shree Krishna Barrels Pvt. Ltd. (11) C/87961/13-Mum CC (Export) Nhavasheva Vs (12) C/87961/13-Mum CC (Export) Nhavasheva Vs Mini Sarvodyog Sira (13) C/87961/13-Mum - CC (Export) Nhavasheva Vs Arihant Impex (14) C/87961/13-Mum CC (Export) Nhavasheva Vs J.B.Overseas (15) .....

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C/87961/13-Mum CC (Export) Nhavasheva Vs Bharat Chemicals (23) C/87961/13-Mum CC (Export) Nhavasheva Vs Advance Packing Pvt. Ltd. (24) C/87961/13-Mum CC (Export) Nhavasheva Vs Kalpana Enterprises (25) C/87961/13-Mum CC (Export) Nhavasheva Vs Ashish Suphur Dyes P.Ltd. 5. The exporters or their partner/proprietors who allegedly masterminded the activities are not in appeal before us. 6. Submissions on behalf of the Officers: (i) The Ld. Counsels explained that the charge against officers is that .....

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fficers have not drawn samples correctly or the samples were substituted in case of past exports otherwise all samples would have tested negative. (ii) Shri Zahid Edrus, who is not even a party to the impugned order, is the only officer who admitted that he handed over signed slips to the representative of exporters which were later on pasted on the sample bottles. The other Officers did not make any such confession. (iii) The exporter Shri Afzal Dalal also stated that he was doing the substitut .....

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ous or illegal consideration taken by the Officers while allowing factory stuffing. (vii) In departmental proceedings, 6 out of 10 Officers have already been exonerated. (viii) In similar case in proceedings against an officer Mr. Hitesh Mehta, penal action was dropped by the adjudicating authority and the order was not reviewed. The Tribunal also held in a similar case of Ruchika International 2015-TIOL-1224-CESTAT-MUM and Sunshine Overseas 2011 (263) ELT 617 that no penalty is imposable under .....

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on High Seas were imported from outside India and, therefore not excisable and therefore beyond the purview of Rule 26 of the Central Excise Rules. (ii) Their clients had no knowledge that the high sea buyers were going to wrongly avail the Cenvat Credit. 8. Submissions of Indigenous Suppliers: (i) In the case of Mini Sarvodyog Sira it was submitted that the list of noticees to the show cause notice and Order-in-Original does not include the name of the appellant. Therefore, the demand is inval .....

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ehalf of M/s. Sudarshan Chemicals Ltd. it is stated that the goods were cleared under cover of Central Excise invoices on payment of duty upto Bhiwandi as arranged by the party and onwards and therefore there is no violation of Central Excise law. (iii) Ld. Advocate for M/s. Indokem Ltd. submitted that they received purchase orders from their stockist who requested them to issue invoices in the name of the company and the goods were supplied to the stockists warehouse. Mr. Bharat Shah, the stoc .....

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er, no penalty can be imposed under Rule 26 (2) for issuing excise invoice without delivering the goods as this sub-rule has been inserted w.e.f. 1.3.2007. (iii) On behalf of M/s. Atul Ltd. it was submitted that they were not involved in the actions of the main parties. All the relevant statements and documents were provided in their reply dt. 10.1.2006 but no justification or even mention of the documents produced were dealt with by the Commissioner in his order. Even cross-examination of Mr. J .....

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at/coercion/physical force, the statement under Section 108 of the Customs Act, 1962 is a valid piece of evidence, hence I hold that the same is reliable, cross examination of the Co-noticee is not going to serve any purpose, hence I reject any such demand. Thus principles of natural justice are violated in not allowing cross-examination. The demand is time barred as they have not suppressed any fact. They relied on the Apex Court judgment in the case of Cosmic Dye Chemicals Vs. Collector of Ce .....

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y evidence namely all invoices, LR Copies Bank Payment advices, Purchase orders etc. According to them there is no mens rea on their part and, therefore, they should not be penalized under Rule 26 of the Central Excise Rules. That the word person appearing in Rule 26 applies to an individual only. As they were not a party to the fraud and did not have knowledge that the goods sold by them are liable to confiscation, no penalty can be imposed. They relied on the case of Steel Tubes of India Ltd. .....

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availment of ₹ 4,17,205/- at Sr. No. of Annexure-A 196, 197 & 198- was upheld on basis of statement of one Shri Nitin Updhyaya but the name of appellants does not figure anywhere and the deal was through another broker. (b) Availment of credit of ₹ 96,72,000/- at Sr. No. of Annexure-A 225 to 262 & 269- was a result of transaction between the four associate companies themselves and the appellant had not played any role in these deals. (c) Availment of credit of ₹ 16,11,6 .....

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finding in the order that the transactions were through appellant. (f) Credit of ₹ 12,94,563/- at Sr. No. of Annexure-I 51 to 55, 57 to 61, 64, 65- was a result of transaction among associate companies and the appellant was not involved in these deals. (g) As regards the credit of ₹ 3,04,537/- at Sr. No. of Annexure-I 1 to 9, 62, 63, 67, 68, 70 & 79 - there is no allegation in the show cause notice against the appellant. (h) As regards credit of ₹ 16,74,067 there is no all .....

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bmitted that the Commissioner of Customs (Export), Nhava Sheva has been appointed to act as Commissioner of Customs of various Custom Houses as also Commissioner of Central Excise & Customs Vadodara-I, Surat-I & Surat-II for adjudicating the matter. Therefore, the Commissioner of Customs (Export) had the power to impose penalty under Rule 26 of the Central Excise Rules. (ii) On the contention of the Ld. Counsels, who represent High Sea Sellers, he submitted that Rule 26 only requires tha .....

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ted to excise duty. He also relied on the case of HPCL vs Commissioner 2012(279)ELT 367 (Tri-LB) to say that imported customs duty paid goods would come within the ambit of excisable goods . (iii) As regards the role of High Sea Sellers and suppliers of indigenous goods, it was submitted that the concerned persons in their statements admitted to selling the imported goods only on paper to the associate companies but actually the goods were sold by them in the open market. The High sea sellers re .....

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were not delivered to the associate company. (iv) The indigenous supplier only supplied duty paying documents to the associate companies whereas the material was sold in the open market. Demand drafts were sent by group companies to the indigenous suppliers and the equivalent amount was received by cash from. These activities were conducted through Shri Liladhar Parehg as admitted by him. And as also admitted by the indigenous suppliers. (v) In one case, M/s. Popawala retracted the statement bu .....

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all indigenous suppliers, that they supplied goods to the companies through their agents as per trade practice, the Counsel submitted that instead of transporting goods to the group companies the same were delivered at Bhiwandi. The sale was not negotiated with the group companies and the indigenous suppliers were only asked by the agents to raise invoices in the name of group companies. This shows that they are a party to the illegal transactions as there is nothing to show that the goods were .....

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he group companies. As regards remaining amount, role of Shri Parekh is explained in his statement. (ix) It was submitted that the Hon ble P& H High Court have held that even prior to 1.3.2007 the supplier of invoices where goods have not been delivered are liable to penalty under Rule 26 of the Central Excise Rules. 11. Submissions of Ld. A.R in respect of Appeals filed by the officers. (i) The Ld. AR submitted that the samples drawn by Central Excise Officers and subsequently recovered by .....

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dgment in the case of Systems and Components Pvt Ltd. to state that what is admitted need not be proved. (iii) The Central Excise Officers did not perform their duties properly as they drew samples from consignments and handed them over to the representative of the exporters, who in turn substituted the samples. (iv) The Central Excise Officers in-charge of Ranges should have been aware of not receipt of raw material and non availability of infrastructure about the manufacturing status of the fa .....

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nificantly the companies are not in appeal before us. It is seen from the records that they made confession to the fraudulent operations but they neither replied to the SCN nor they appeared for personal hearing. The Commissioner quite naturally came to the conclusion that they have nothing to advance their defence. He based his findings against the companies on the basis of records, confessional statements and hard evidence that they masterminded the total operations aimed at fraudulent availme .....

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been constantly taking this position as in the cases of Rajesh Kumar Agarwal vs CCE 2015(321)ELT 313 (Tri-Del) and Golden Tobacco Ltd. vs CCE 2015(317) ELT 313(Tri-Del) . Therefore we order remand of these cases for fresh adjudication by the Commissioner for fixing the duty liability appropriately. Needless to say, the appellants will be afforded an opportunity of personal hearing and the principles of natural justice will be followed. We also note that it is a settled position in law that good .....

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nalties under Section 114A in such cases will also be decided by him accordingly. 12.2. The next issue is the imposition of penalties on the High Sea Sellers. We find varying amounts of penalty imposed on the various high sea sellers depending on their role in availment of Cenvat Credit on the goods sold by them on high sea basis. (i) At the outset, Shri J.H. Motwani Ld. Counsel questioned the power of Commissioner to impose penalty under Rule 26 of the Central Excise Rules. We find that in this .....

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Ld. Counsel is outrightly rejected. (ii) The contention of the counsels is that penalty cannot be imposed on the appellants under Rule 26 as they have not dealt with excisable goods. For convenience Rule 26 is reproduced below: Rule 26. Penalty for certain offences.- Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reaso .....

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t the goods sold on high seas were imported goods and were not manufactured in India, therefore duty was not payable under Section 3 of the Central Excise Act. The duty was payable under Section 3 of the Customs Tariff Act. Therefore the provisions of confiscation under the Central Excise Rules are not applicable to them and hence penalty under Rule 26 of the Central Excise Rules cannot be imposed. However, Ld. Special Counsel submitted that what has to be seen is whether the goods per se are sp .....

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t in the case of HPCL (supra) was delivered in a different context and not in the context of imposition of penalty on imported goods under the Central Excise Rules as is being sought to done in the present case. Whereas what we have to examine is the situation of goods which are not yet imported under the Customs Act. Referring to the provisions of Rule 26, we find that penalty is imposable if any person deals with any excisable goods which he knows are liable to confiscation under the Act. Even .....

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ny excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or (b) does not account for any excisable goods produced or manufactured or stored by him; or (c) engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under section 6 of the Act; or (d) contravenes any of the provisions of these rules or the notifications issued under these rules with intent .....

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nd rupees], whichever is greater. (2) An order under sub-rule (1) shall be issued by the Central Excise Officer, following the principles of natural justice. In the present case we find that the goods which are still on high seas cannot be held to be liable to confiscation in terms of Rule 25 above. It has not been shown, in terms of the above Rule that the High Sea Sellers have contravened any provisions of Central Excise Rules with intent to evade payment of Central Excise duty when the goods .....

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Sellers viz-a-viz the Importers. 12.3 We now deal with the penalties imposed on the indigenous suppliers. The allegation is that only duty paying documents were sent by the suppliers to the companies whereas raw material was sold in the open market. This enabled the suppliers to avail Cenvat credit without receiving the goods. These facts have been admitted by the dealers and stockists as well as the companies who received the documents. These facts are also revealed in the statements of officia .....

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The vehicle shown to be used by the first stage dealer B R Enterprises in its invoices was their vehicle and could not have been used by BR Enterprises. On the date written on the invoices, the vehicle was in their possession. Shri Jugal Kishore Consultant for Ms Indokem stated that he was asked by their Vice President Mr FC Saharan to prepare DOs for the companies. Shri Bharat Jayantilal Shah Partner of Ms Paras Sales Agency stated that brokers such as Liladhar Parekh approached him and wante .....

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sell goods in the market but the goods never reached the companies. The facts above lead to a reasonable belief that the suppliers were aware of the methods adopted. In the case of Ms Atul, the statement of Darhan Sheth of the Transport Company shows that they were contacted by Ms Atul for transportation of the goods to Bhiwandi whereas the invoices were in the name of the companies. This was abnormal because the place of the company, i.e. Bhestan and Bhiwandi are in opposite directions. Even a .....

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s were sent to Bhiwandi and sold in the local market. Whereas the defence plea is that as per commercial practice they received orders of companies through brokers. We find Ms Atul supplied the goods by writing in the invoice under the column of consignee, the description such as Qualigance Chemicals Account Bhagwandas Ramchandra. The goods were ostensibly meant for Qualigance Chemicals. However, since the order was placed by the intermediary Bhagwandas Ramchandra they mentioned the word Account .....

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the statement under Section 108 of the Customs Act, 1962 is a valid piece of evidence, hence I hold that the same is reliable, cross examination of the Co-noticee is not going to serve any purpose, hence I reject any such demand . We find that denial of cross-examination to partner of Shri Bhagwandas Ramchandra is not material when the offence can be established on the basis of documents . It appears that the goods were supplied to the companies without ensuring actual supply of the goods. We a .....

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red to verify even once whether the goods were delivered to the companies. To this extent we find that the goods are liable to confiscation under Rule 25 of the Central Excise Rules. This is because in terms of Rule 11 of the Central Excise Rules the goods are to be removed on basis of invoices in Triplicate out of which the original invoice is meant for the buyers. That is, the original copy is meant for the consignee and duplicate copy must accompany the goods. This was not ensured. If the des .....

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the samples under their signatures, they handed over signed slips bearing their signatures to be affixed on the covers containing sample bottles. Thereby they facilitated the substitution of samples by the exporter which resulted in fraudulent DEPB claims. We find that it is only in the case of the current consignments in containers which were seized that the officer namely Inspector Zahid admitted to this fact. None of the other officers who are appellants admitted to having given signed slips .....

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ed that the case of this officer Shri Zahid, who is not a party in the present case, is yet to be adjudicated. Shri Afzal Dalal also stated that he was doing the substitution with the knowledge of the officers. Due to lack of any concrete evidence against the officers who handled past consignments, it is difficult to sustain the case against them. Another allegation is that in some cases there was no manufacturing at all in the factories where containers were sealed and the officers should have .....

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. II/36-4/VIG/WD/2013-14 dt. 12.11.2014 which held that the Inspectors are not required to verify plant and machinery while following the export procedure for drawal of samples. This report also goes in favour of the appellant officers. (ii) Fact is that samples were drawn and the results in some cases after retesting by DRI tested positive. Although 30 out of 41 consignments tested negative it has not been brought on record as to what happened to the samples which were initially sent for testin .....

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erms of Section 155 (2) of the Customs Act and Section 40 of the Central Excise Act, no proceeding shall be commenced against any officer without giving the officer a months previous notice of the intended proceeding and of the cause thereof, or after the expiration of three months from the accrual of such cause. Revenue has not challenged the fact that the time lines in Section 155(2) were not adhered to. No convincing reason has been given to us why Section 155(2) will not be applicable. Relia .....

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infact he used to represent the four companies independently with the suppliers and Government agencies as/ he used to sign the HSS agreements and all the other relevant documents as authorized signatory of the said four firms i.e. M/s Cosmos Chemicals & Intermediates, M/s Qualigance Chemcials, M/s Chevrolet Dyes Intermediates & Agrochem Industries and M/s Colosperse Chemcia! Corporation;) that he appended his dated signature on the last page of the said statement in token of having seen .....

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ures on the last page of all the statements; that he was shown statement dated 15.12.2004 and 05.02.2005 of Shri Bharat Himmatlal Shah of M/s Karan Monomer P. Ltd. and statement dated 12.01.2005 of Shri Bharat Mehta; Chemical Broker and stated that the facts stated by Shri Bharat H. Shah regarding his role were correct;' that with regard to statement dated 12.01.2005, of Shri Bharat Mehta he stated that he had never met Shri Bharat H. Shah in the subject deal and all the transactions on beha .....

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e goods i.e. 23.5 MT of Titanium Dioxide cleared under bill of entry No. 828503 dated 20.03.2003. were stored in Ambica Storage (540 Bags weighing 13.5 MT) and Dehmukh warehousing (400 bags weighing 10 MT) and the same were sold by him in the open market; that out of the sale . proceeds recovered by him he paid the equivalent amount of DD to M/s Cosmos Chemicals which was handed over to M/s Rose Chemicals; that M/s Rose Chemcials had not paid any amount to M/s Cosmos Chemicals ,& Intermediat .....

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Raghvendra M. Adhyapak, General Manager Commercial of M/s C. J. Shah & Co., statement dated 17.12.2004 of Shri Atul M. Gandhi, statement dated 17.12.2004 of Shri Hiren" Mehta, Prop, of M/s Vitrag Chemicals and statement dated 18.12.2004 of Shri Ketan N. Shah, Prop, of M/s Jmpex Dyechem, statement dated 18.12.2004 of Shri Mukesh A. Bakhai, Partner of M/s Amrit Chem, Mumbai, statement dated 24.09.2004 of Shri Ramavtar Poddar, Partner of M/s Maruti Rasayan, statement dated 31.12.2004 of S .....

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2005 of Shri Mukesh Ramani, Director of M/s Knox Impex Pvt. Ltd. and statement dated 10.01.2005 of Shri Vijay Sheth, Director of M/s Dye-O-Tex Dyestuff & Intermediates P. Ltd. and stated that on perusal of the statements, the facts stated in these statements were true correct and acceptable to him and in token of acceptance he appended his signature on last pages of these statements; that he was shown statement dated 31.12.2004 of Shri Jagdish Singh Arora, Director_of_M/s. D. K. Foods & .....

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ging of DEPB Scrips, as stated by Shri Jagdish Singh and stated that he also did not take the delivery of the goods from the docks after clearance of the same; that in token of having seen the said statements he appended his signatures on the last page of the said statement; that he had perused the statement dated 12.01.2005 of Shri Satish Sanghvi, Authorized Signatory of M/s Parag International and on perusal of the same he stated that the facts stated by Shri Satish Sanghvi were not correct as .....

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Nanavati Prop, of M/s Kesar Color Chem and on perusal of the same he stated that that the facts stated by Shri Preyash Nanavati about his dealings with Shri Mrs. Fernandes for the sale of Liquid Phenol on HSS basis to M/s Chevrolet were not correct as all the paper transactions and cash transactions made between M/s Sahastraa Exports and himself (M/s Chevrolet) were done by Shri Preyash Nanavati and that he had never rnet or spoken with Mrs. Fernandes; that the DD for the duty amount and for the .....

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International and statement dated 23.01.2005 of Shri Bhaskar Mehta Proprietor of M/s B. I. Mehta, statement dated 09.11.2004 and 07.12.2004 of Shri Suresh Mehta of M/s Gaurav International, statement of Shri Rajiv M. Kanani, Prop, of M/s Prachi Trading Co., statement dated 17.01.2005 of Shri Santosh W. Natekar, Partner of M/s Uniway Trading P. Ltd. and statement dated 18.01.2005 of Shri Radheyshyam Harlalka, Chemical Broker of VAdgadi, Mumbai, statement dated 19.01.2005 of Shri Chetan Parekh, P .....

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he did not accept the fact stated by Shri Shivkant Khetan about his role in the said transaction; that he never met Shri Shivkaht Khetan for making the HSS agreement in the name of M/s Chevrolet; that he had never sold any consignment of chemical to Shri Shivkan Khetan and had never suggested Shri Shivkant Khetan to import acrylamide and had not suggested any indenter to Shri Khetan; that for the HSS agreement made between Shri Khetan and M/s Chevrolet one chemical broker Shri Sailesh Mehta hav .....

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gnatory of M/s' Parag International, Shri Yogesh D. Shah, Director of M/s Devansi Impex P. Ltd and Shri Bharat Sheth, Proprietor of M/s Bronze Chem Enterprise and on perusal of the same he stated that he had not passed on any instructions about the transportation of the goods to Bhiwandi nor had arranged any buyer for the sale of the subject goods from Bhiwandi; that in all the three cases as and when the Demand Drafts were received from the respective HSS buyers, the equivalent amount of ca .....

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same; that he had perused the statement dtd 20.01.2005 of Shri Suresh Bhagwandas Jaju, Authorized Signatory of M/s B. R. Enterprises and stated that the facts stated by Shri Suresh Jaju about his role were correct and acceptable to him; that all the goods shown to have sold to M/s Cosmos & M/s Qualigance were never physically delivered to them and only C. Ex. Duty paying documents were sent to the respective parties; that he had received 0.5 % of the value of the goods as his brokerage and .....

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Surendra Roshanal Duggal, Partner of M/s Bharat Solvents & Chemicals Corp. New Delhi and statement of Shri Hiren R, Gosalia, Prop of M/s Ramniklal Gosalia & Co. and on perusal of the same he stated that the facts stated about his role were true and correct and were acceptable to him, in token of this he appended his signature on the last page of all the statements; that Shri Afzal Dalai & Shri Asif Bidiwala first approached him in Dec, 2001 for arranging buyers for the sale of appro .....

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him brokerage of 1% of the transaction value which was subsequently reduced to 0.5 % and at times he was getting 0.25 %; that as per the normal trade parlance whenever any such sales were made wherein any document ie. Duty paying C. Ex. Invoice or bill of entry document showing HSS, were taken by the buyer and the goods were retained and sold by the sellers, the seller had to pay 1% or 2% commission to the buyer because all payments for such sales were made/shown from the account of the buyer; t .....

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this was the only indirect benefit to the indigenous parties From the statement we find that he has made confessions at various places about receiving brokerage amounts for dealing with imported and indigenous goods which were not delivered to the importers/consignees but were actually sold in the open market. After selling the imported goods, he received demand drafts from the buyers and paid equivalent amount in cash. However, at the same time we also find that in some cases pointed out by th .....

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er that he had brokered these deals. Similar is the case regarding Cenvat Credit availed of ₹ 1294563/-. The Credit of ₹ 121650/- held in admissible on basis of letter dt. 18.4.2005 of M/s. Basal Impex which does not even appear in the relied upon documents. Also the Cenvat Credit of ₹ 393240/- and ₹ 304537/- finds no mention in the show cause notice or the findings. We find that Shri Liladhar Parekh definitely had a hand in brokering deals in some cases with full knowled .....

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has not imposed penalty on the DEPB Holders under Section 114A as mentioned at Para-O(iv). (2) The adjudicating authority has not confirmed duty demand on DEPB Holder M/s. Corporate Chemicals and Intermediates which was required to be done as the goods were confiscated. (3) The adjudicating authority confirmed duty against M/s. Cosmos Chemicals and Intermediates to the extent of ₹ 16,73,355/- instead of ₹ 58,02,726/- (Para-S(ii) of the Order). As regards these appeals since we have .....

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, in the cases where penalty has not been imposed on indigenous suppliers by the Commissioner, we remand the matter back to the Commissioner in re-adjudication after affording an opportunity of personal hearing. (5) The adjudicating authority imposed mandatory penalty of ₹ 3000/- instead of minimum mandatory penalty of ₹ 10,000/- under Rule 26 on the indigenous supplier M/s. Advance Packaging Pvt. Ltd. Therefore, we order that the penalty on M/s. Advance Packaging Pvt. Ltd. be increa .....

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