TMI Blog2010 (10) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... or of RAO). The demand of duty, which is sought to be enforced jointly and severally against Vision, RAO, Shri Ganesh Overseas International, M/s C.A International and M/s Bhavna Textile Impex is based mainly on two findings viz. (a) some of the goods exported by Vision and RAO to Russia under claim of drawback were diverted without being delivered to the Russian buyers; and (b) all the goods exported by Vision, RAO and others were over-invoiced for the purpose of claiming higher amounts of drawback of duty than what was actually admissible to the exporters. This and other findings were recorded on the basis of a few statements and numerous documents relied upon in the relevant show-cause notices. The learned Commissioner found that all the exports, most of which were made to Russia and the rest to Dubai, were, in fact, made by Vision and RAO. He found the other parties (Shri Ganesh Overseas International etc) to be fictitious firms. On this basis, the learned Commissioner ordered for recovery of the entire drawback amount jointly and severally and also imposed penalties on all the parties including the so-called fictitious firms. 2. In the present applications, waiver of pre-de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial No. 133 of the resumption memo dated 15.1.03 . It is submitted that all these items were seized from the appellants by the DRI but never returned. It is submitted that, though the learned Commissioner wrote to the DRI for supply of the said documents to the appellant and also directed the appellant to approach the DRI to take delivery of the documents, the appellant failed to get the same from the DRI on account of the indifference of the DRI officials. It is further submitted that, though the DRI had replied to the Commissioner that all the relied upon documents had been supplied to the appellant, in fact, some of the relied-upon documents are yet to be supplied. In relation to the relied upon documents which are said to have been not supplied to the appellant, the learned counsel has invited our attention to his own letter dated 24.4.2007 addressed to the Commissioner listing out the following documents: (i) Invoices of export consignments relied upon; (ii) Shipping Bill of export consignments relied upon; (iii) Bills of Lading of export consignments relied upon; (iv) Statements of SEA SKY Shipping Line; (v) Circular No 30 dated 28.9.93; (vi) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only Shri Arun Kumar Gupta of RAO and Shri Amit Thaper of M/s C.A International. They could not cross-examine the other persons. The learned Commissioner should have given one more reasonable opportunity to Shri Manoj Gupta to cross-examine these witnesses of the department. It is submitted that denial of such opportunity by the adjudicating authority amounted to negation of natural justice to the appellants. In this connection also, the learned counsel has relied upon certain decisions: (i) Vinod Solanki vs Union of India 2009 (233) ELT 157 (SC); (ii) Commissioner vs Metro Tyres Ltd 2005 (181) ELT 176 (SC); (iii) Shalimar Rubber Industries vs Collector 2002 (146) ELT 248 (SC); (iv) Arya Abhushan Bhandar vs Union of India 2004 (143) ELT 25 (SC); (v) Lakshman Exports Ltd vs Collector 2002 (143) ELT 21 (SC). A few other decisions have also been relied upon by the learned counsel in the above context. It is submitted that, where the inculpatory statements of the aforesaid witnesses of the Revenue were relied upon in the show-cause notice, it was open to the Commissioner to direct for their cross-examination. The appellant requested for cross-examination, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 200 onwards) contains the letters in Russian language and their English translation. It is submitted that this correspondence would clearly show that OOO Europa Torg , one of the Russian buyers of the goods exported to Russia by the appellant, was an identifiable company carrying on export-import operations in Russia during the material period. The grievance is that these documents were not considered by the learned Commissioner before holding that the consignee companies were non-existent and the goods were diverted without being taken to the destination in Russia. In the context of explaining TIR-Carnet procedure for movement of export goods from Kotka port of Finland to any destination in Russia, the learned counsel has also relied on a letter dated 12.8.2004 available at page 197 of paperbook Vol. III. This is a letter by National Board of Customs, Helsinki, Finland addressed to the High Commission of India, London. The learned counsel has referred to numerous illustrative instances of transit of export goods from Kotka port to different land-locked cities of Russia. His endeavor is to show that the goods exported from India to Russian consignees could be landed at Kotka for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with the principles of natural justice. 6. The learned Jt CDR has made the following submissions: (a) All the relevant documents were supplied to the appellants and this fact has been acknowledged by his counsel. In this connection, the learned Jt CDR has referred to the advocate s letter dated 5.9.07 to the DRI, wherein it was stated that certain non-relied upon documents were yet to be returned to the appellants. This letter also specified those documents with reference to resumption memo dated 15.1. 03. One or two other letters of the counsel addressed to the DRI have also been referred to by the learned Jt CDR. These documents did not refer to any relied upon documents and, therefore, the appellants can not have grievance that any relied-upon document is yet to be supplied to them. It is also pointed out that this aspect has been correctly noted by the Commissioner in the impugned order. (b) With reference to non-relied-upon documents, it is submitted that most of such documents seized from the appellants were returned to them and that only a few remain to be returned. It is submitted that these documents were not relied upon and hence not returned. (c) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of violation of natural justice. It appears from the records that the relied-upon documents, barring a few, were supplied to the appellants. A letter dated 28.4.2007 of the appellant s advocate addressed to the adjudicating authority shows a list of seven documents which we have already reproduced in an earlier part of this order. Apparently, all these documents were seized by the DRI and later on figured in the list of relied-upon documents but none was supplied to the appellant. These documents include Shipping Bills, invoices and Bills of Lading relating to the export consignments. The Shipping Bills were filed under claim of drawback and the same were assessed and the drawback claims allowed. In the impugned proceedings, these very amounts of drawback are sought to be recovered from the appellants and, that too, jointly and severally. It is surprising that, neither the adjudicating authority, nor the investigating agency cared to supply these crucial documents to the appellant who required these documents to establish that the drawback claims had been correctly and lawfully allowed. Many other documents, not relied upon in the show-cause notice, were also required by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be extensively discussed. The aforesaid case law would support the appellants request for remand of the case. The learned Jt CDR has claimed support from the Supreme Court s decision in Surjit Singh Chhabra vs Union of India 1997 (89) ELT 646 (SC), wherein, on the facts of that case, it was held that the denial of opportunity to the petitioner to cross-examine the witness was not violative of the principles of natural justice. The petitioner had confessed to his guilt in the statement given under Section 108 of the Customs Act and his belated retraction was rejected by the apex court. It was in this context that he was not allowed to cross-examine any witness. Such a factual situation is not present in the instant case. Moreover, the context of adjudication in this case is also similar to the cases cited by the learned counsel. It is not in dispute that atleast some of the non-relied upon documents were not supplied to the appellant. We have found some of these documents to be crucial for the appellant. The Honble Supreme Court has categorically held that, where the party wants to rely on the documents seized from them, to contest the allegations raised in a show-cause notice iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow-cause notice were also not discussed in the Commissioner s order. Certain documents filed alongwith the reply to the show-cause notice were completely ignored. No case law cited by the appellants was considered. Conclusions were reached in a pre-determined manner. 9. We think, we must set aside the impugned order which is vitiated not only by gross negation of natural justice to the appellant but also by non-application of mind to the materials on record. We set aside the impugned order and allow all these appeals by way of remand with a direction to the learned Commissioner to pass a speaking order on all the issues in accordance with law after: (a) ensuring that all the non-relied-upon documents are returned to the parties concerned; (b) serving copies of the relied-upon documents yet to be supplied; (c) giving a reasonable time to the appellants to submit a final reply to the show-cause notice; (d) allowing Shri Manoj Gupta to cross-examine the proprietors of Shri Ganesh Overseas International and M/s Bhavna Textile Impex and Shri Narendra Jain; (e) Considering all the documentary evidence on record and all the submissions of the appellant; 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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