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2016 (4) TMI 406 - CESTAT NEW DELHI

2016 (4) TMI 406 - CESTAT NEW DELHI - 2016 (340) E.L.T. 345 (Tri. - Del.) - Disallowance of drawback claim - Exporter of bicycle parts to Iran, Tehran and Egypt - Jurisdiction - Whether DRI officer is a proper officer to issue show cause notice - recovery of erroneously granted excess draw back in terms of Rule 16 - Held that:- as per circular, show cause notices are required to be issued in terms of provisions of Rule 16 of the Customs, Central Excise Duties and Service Tax Draw back Rules, 199 .....

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plying the ratio of law, declared by the Hon'ble Supreme Court in the case of Commissioner of Customs vs. Syed Ali [2011 (2) TMI 5 - Supreme Court] and subsequently followed by various other High Court, it has to be held that DRI officer was not the proper officer for issuance of show cause notice for the purpose of demand of allegedly erroneously granted excess draw back. Therefore, the show cause notice having been issued by ADG, DRI Delhi, is without jurisdiction and consequently the impugned .....

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d at the end of supplier also, therefore, it cannot be alleged that goods were undervalued in the absence of contemporaneous price for the purpose of like kind of goods. - Held that:- It was also found that out of 3 merchants/financiers only one company was not found at the address. Further it is found that the Revenue is heavily relied on the statement of Shri Navdeep Goyal representative of shipping agency but he was not made available for cross examination. Therefore, the said statement c .....

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re. No departmental officers were alleged that having conspiracy with the appellants and there is verification report is on record. Therefore, in the absence of any supportive evidence except the report from the Consulate General of India at Dubai which is also not conclusive. In the absence of any such supportive evidence, it cannot be alleged that the appellant has availed excess drawback claim erroneously. Therefore, the demand is set aside on merits. - Decided in favour of appellant with con .....

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otal of ₹ 59,66,470/- claimed as draw back by three exporting units and has imposed penalties upon them as detailed below;- Sl. No. Company s name Draw back (in Rs.) Penalty (in Rs.) 1. M/s. Monte International, Ludhiana 30,33,220 6,00,000 2. M/s. Monte Metals, Ludhiana 22,22,280 6,00,000 3. M/s. M K International 7,10,870 1,00,000 2. In addition to confirming the draw back given to the said three exporting units, penaltuy of ₹ 40 lakhs stand imposed on Shri Kulbhushan Goyal, son of .....

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ted in Dubai and the parts of the bicyle were either procured by them from indigenous manufacturers or from the various raw material required for manufacture of such bicylcle parts were procured from the local market and bicycles parts were manufactured by them. 4. Based upon some intelligence received by the DRI as regards, the fraudulent export of bicycle parts to various Dubai parties, under export executition scheme like draw back DEPB etc, search operations were conducted at the factory cum .....

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isclosed the names of various local suppliers from where they have purchased the raw materials for manufacture of bicycle spare parts such as hub cups, brake, screws, as also thread bars, nut bolts screw. In the said statement, he also disclosed that the said exporting units were receiving orders on fax or through E-mails and quotations were finalized telephonically in most of the cases. Sometimes he was receiving direct purchase orders from overseas buyers and sometimes the same were being fina .....

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agreed to have supplied the goods to the said unit. 6. It is seen that during the course of investigation, the Revenue also recorded the statement of Manager of Shipping Line Shri Navdeep Goyal on 30.3.05. In the said statement, he deposed that the responsibility of shipping line was to deliver the goods up to its final destination as agreed upon and as mentioned in the Bill of lading. Bill of lading was prepared on the basis of their surveyor report (stuffing report) and E. P. copy dully signed .....

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andar Abbas (Iran), he admitted that there were discrepancy in the two bills of lading. 7. When the bill of lading produced by Shri Navdeep Goyal Branch Manager of Shipping line was shown to Shri Kulbhashan Goyal, he deposed that inasmuch as the same was a photocopy, he doubted the authenticity of the same. The concerned shipping line should be called for verifying its authenticity 8. The DRI also conducted inquiries at Dubai port and procured a letter dated 10.12.03 from . Consulate General of .....

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ion conducted by the Revenue and on the basis of overseas inquiries, Revenue entertained a view that the goods exported by the appellant had no buyers as is evident from the fact that same were abandoned at Dubai. Reference was also made to the subsequent report of the Consulate General of India given under its letter dated 17.1.05 clarifying that there was no company in the name and style of M/s. Clarion Logistics in Dubai and same was a non-existent unit. The fact of auction of the goods at &# .....

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arious submissions in their defence. It was contended by the appellant that they are a regular exporter of the bicycle parts to Iran, Tehran and Egypt countries and no discrepancies have ever been found in the earlier export consignments. The present 41 consignments were exports to Tehran, which was through the merchant traders and financers located in Dubai. They contended that inasmuch as the investigation conducted by the Revenue at the Indian end of the Indian supplier for supply of bicycle .....

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hereafter, the let go order by the Customs authorities was passed and the said order having not been challenged by the Customs authorities by way of filing any appeal thereagainst, the Revenue is debarred from contending that consignment was not as per the declaration. They have also challenged the result of overseas inquiries by submitting that the said report is only in respect of 5 consignments and for the reasons best known to the Dubai parties the goods stand auctioned. Based upon the sai .....

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djudicating authority however, did not find favour with the above submissions and passed the impugned orders. 12. We have heard Shri K K Anand, learned advocate appearing for the appellant and Shri R K Verma, learned AR for the Revenue. Shri Anand, learned advocate raised the issue of jurisdiction of ADG - DRI for the purpose of issuance of show cause notice. Referring to the Hon ble Supreme Court decision in the case of Commissioner of Customs vs. Syed Ali reported in 2011 (265) ELT 17 SC, he s .....

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en that SCN dated 31.3.05, proposing recovery of duty draw back in terms of Rule 16 of the Customs and Central Excise duty draw back Rules, 1995 stands issued by ADG, DRI Delhi Zonal unit. As per the provisions of Rule 16 of the Customs and Central Excsie duty draw back Rules, 1995, recovery of any alleged erroneous or excess payment of duty draw back can be demanded by a PROPER OFFICER of Customs. The proper officer stand defined under Explanation 2 (34) of the Customs Act, 1962, which reads as .....

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he Honble Supreme Court that in terms of provisions of Section 2(34) only such officers of Customs who have been assigned specific functions would be proper officer in terms of provisions of section 2(34) of the Act. As such, by collective reading of section 2(34) of the Customs Act and Section 28 of the Customs Act, the Hon ble Supreme Court held that only such Customs Officer who has been assigned the specific function of assessment and reassessment of duty in the jurisdictional area, where t .....

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d by the Revenue was dismissed as reported in [2011 (274) ELT A 109. In a subsequent matter in the case of Chandna Impex Pvt. Ltd. vs. CC New Delhi [ 2011 (269) ELT 433 (SC)], the issue as to whether the officer of DRI can be considered to be proper officer to demand duty under Section 28 of the Customs Act came up before Hon ble Supreme Court and the matter was remanded to Hon ble High Court to decide such substantial question of law in the light of decision in the case of Syed Ali. Honble Pun .....

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tention is that show cause notice issued by DRI cannot be held to have been issued by the proper officer in which case, the appeals are required to be allowed on said short ground itself. 14. It is seen that after the Honble Supreme Court decision in the case of Syed Ali and others, Government of India issued Notification No. 41/11-Cus (NT) dated 6.7.11 wherein the officers of DRI and Commissioner of Customs and other lower officers were declared to be the proper officer in terms of Section 2(3 .....

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I officers and Customs (Prev) officers for the purpose of show cause notice under section 28 of the Customs Act. 15. However in the present case, we find that show cause notice stand issued in terms of provisions of Rule 16 of Customs and Central Excise duty and Service Tax draw back 1995. The said Rule, for the sake of convenience is reproduced below: RULE 16. Repayment of erroneous or excess payment of drawback and interest.- Where an amount of drawback and interest, if any, has been paid erro .....

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er of the Customs and recipient of the same has to repay the same; Though we note that said Rule 16 does not, in clear terms, refers to issuance of show cause notice but the same refers to the demand being made by a Proper Officer of Customs. How this demand has to be made without the issue of show cause notice and without giving an opportunity to the persons concerned to putforth his defence as against the alleged excess erroneously granted refund, stands answered by the Boards Circular No. 24 .....

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ise and Service Tax Drawback Rules, 1995 shall, henceforth be as under: 16. As is seen from the above said para of Circular, show cause notices are required to be issued in terms of provisions of Rule 16 of the Customs, Central Excise Duties and Service Tax Draw back Rules, 1995 within the monetary limit laid down in the said circular, before any recovery can be initiated. As such, we are of the view that though there is lacuna in the said Rule 16 inasmuch as the same does not specifically provi .....

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ule 16 can be held to be valid show cause notice in the light of law declared by the Honble Supreme Court in the case of Syed Ali and subsequently followed in the number of decisions referred (supra). It is seen that after declaration of law by the Honble Supreme Court in the case of Syed Ali, the law was amended with retrospective effect conferring jurisdiction on DRI officers as also on Commissioner of Customs, (Prev) for the purpose of issuance of Show cause notice in terms of Section 28 of .....

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in relation to the monetary limits. In the said circular, DRI officers were never considered to be proper officers for demanding draw back under Rule 16. There was no retrospective amendment carried out in the said Rule 16 so as to confer jurisdiction on the DRI officer for issuance of show cause notices. Bombay High Court in the case of Tejus Proprietary concern of Tejus Rohitkumar Kapadia vs. Union of India reported as [2012 (275) ELT 175 (Bom)] has taken a very serious note of the fact that T .....

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the Tribunals decision in the case of Nylex Traders vs. Commissioner of Customs (Prev) Mumbai [2011 (274) ELT 71 (Tri-Mum)] wherein it was observed that the jurisdictional objection can be raised at a later stage also as it goes to the root of the case. Accordingly, by following the Supreme Court decision in the case of Sayed Ali, Tribunal struck down the show cause notice issued by Commissioner (Preventive). As such, by applying the ratio of law, declared by the Honble Supreme Court in the c .....

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s, on the line of retrospective amendment in Rule 28. On the next date of hearing, learned DR very fairly agreed that there is no such amendment to Rule 16. As such, we are of the view that show cause notice having been issued by ADG, DRI Delhi, is without jurisdiction and consequently present impugned order become void ab initio and cannot be upheld. The same is liable to be set aside on the ground of jurisdiction itself. We order accordingly. 18. Though we have set aside the impugned order on .....

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ills of lading at the end of the appellant showed the port of discharge as Bandar Abbas, Tehran. However, the bill of lading produced by the shipping agency during the course of investigation showed the port of discharge as Jabel ali, Dubai. Admittedly, the port of discharge on the shipping bills and the EP copy was Bandar Abbas, Tehran and as per the said statement Navdeep Goyal, the same has to be shown on the bill of lading. However, he has failed to show as to whether the port of discharge o .....

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mployment of Shipping line during the relevant period, and was only three months old at the time of giving his statement, how his statement given in respect of bill of lading of the relevant exports can be held to be of any evidentiary value when admittedly the bill of lading was neither issued either by him nor during his tenure as Branch Manager of the said shipping line. Further more, the said Navdeep Goyal never appeared for cross examination inspite of adjudicating authority issuing summons .....

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es who appeared for cross examination were not accepted by the appellants for the purpose of cross examination, the statement of Shri Navdeep Goyal can be adopted as an evidence. We find no justification in the above reasoning of the appellant. Admittedly, the revenue has relied upon the statement of Navdeep Goyal and not on the statement of Captain Anil Ratra or Shri Anil Sharma. The purpose of cross examination of any deponent is to test the veracity of the statement made by him during the cou .....

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ment given by Shri Navdeep Goyal. As such, we are of the view that Revenue reliance on the statement of Shri Navdeep Goyal, who was only 2-3 months old employee in the shipping line and was not even the concerned person during the period when exports took place, cannot be held to be a justifiable. It may not be out of place to mention that said bill of lading produced by the shipping line was shown to the Shri Kulbhushan Goyal. He very clearly deposed that said photocopy of shipping bill seems t .....

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arts. Even at the time of search nothing incriminating was found by the department. Further, the finished goods were also procured by the appellant from other manufacturer whose names were disclosed by them. Investigations conducted at their end also revealed that the said goods were supplied by the said manufacturers. Neither of them have agreed that supplied goods were either sub-standard or were of low value. The appellants are admittedly regular exporter of the goods in question and there ha .....

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nspector in regard to description, quality, quantity or value of the goods. The result of cross examination of the concerned Superintendent and concerned Inspector reveals that goods were examined and found to be correct and it is only thereafter that the material was stuffed in the containers and allowed for export. In the light of result of such cross examination which has been ignored by the lower authorities on the sole ground that such an examination was only in respect of 5% of the goods w .....

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ts but was spurious junk material, even the examination of 5% of the goods gains importance. 23. The finding of the adjudicating authority that the appellants mis-declared as regards the value of the goods as also port of discharge are contrary to even the procedure adopted by the Customs authorities. The appellants had admittedly filed shipping bills where the discharge port was shown as Bandar Abbas, Tehran. The bills of lading are prepared as per the discharge port shown in the shipping bills .....

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ar abbas Tehran. It is only subsequently that bill of lading was prepared by Shri Navdeep Goyal under duress of DRI showing the discharge port as Jabel Ali, Dubai. The same Shri Navdeep Goyal has supplied 3 E Ps shipping bills showing three different Iran buyers and port of discharge as Bandar Abbas. There is no explanation in the statement of Shri Navdeep Goyal for different bill of lading showing Dubai as port of discharge while according to Shri Navdeep Goyal himself port of lading were prepa .....

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/ financers and the payment of goods was received well in advance. They have not received any complaint either from their Dubai customers or from the ultimate buyers at Iran / Tehran or Egypt. Further, the report of the Consulate General that one of the Merchant trader was not in existence in Duabi was proved wrong by producing the address of said company through website. Further, there is no such report in respect of other Duabi Merchant Traders and the adjudicating authority has presumed that .....

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gh proper banking channels. 25. As regards the report of the consulate general of India at Dubai indicating that the goods covered by 5 consignment were auctioned at much less price in Dubai cannot ipso facto lead to the conclusion that the appellants exported their goods to Dubai instead of Iran / Tehran. Apart from the fact that said report is only in respect of 5 consignments whereas the draw back is sought to be denied in respect of 41 consignments, we note that once the goods left the terri .....

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to the appellant especially in the light of evidence collected by the DRI itself as regards the supplier of the goods and realization of the banks certificate, the non receipt of any complaint by the recipient of the goods etc. To deny export benefits on the statement of Shri Navdeep Goyal which has been held to be of no evidentiary value and based upon the report of the Consulate General which is neither detailed report nor co-relate the goods with the export goods, denial of draw back cannot b .....

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k of jurisdiction by ADG, DRI. It is referred that there was no retrospective amendment in terms of rule 16 of the Drawback Rules and thus on this account also, there was lack of jurisdiction. 28. Case has also been considered on merits for academic interest by Member (J). On such examination, merely on account of non appearance of Navdeep Goyal for cross examination his statement has not been considered even though, statement was based on records. Para 19 of the draft stay order recorded by Hon .....

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e on the shipping bills and the EP copy was Bandar Abbas, Tehran and as per the said statement Navdeep Goyal, the same has to be shown on the bill of lading. However, he has failed to show as to whether the port of discharge on the shipping bill and EP copy was different than the one mentioned in the bill of lading in the case of the appellant. Thus, it seems to be a contrary statement made by Shri Navdeep Goyal. 29. Plea has been taken that statement of Navdeep Goyal cannot be relied as at the .....

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by learned Member (J) on jurisdiction as well as on merit. I intend to record my own order on jurisdiction issue as well as on merits. 31. Facts as discussed in Members draft order are taken on record. 31A. First I will discuss issue based on jurisdiction. Jurisdiction Issue 32. The Member (Judicial) has proposed to set aside recovery of the amount of drawback primarily on the ground of lack of jurisdiction on the part of the ADG, DRI, Delhi to issue show cause notice. It has been, referring t .....

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nt case. It has accordingly been held that in the absence of any such amendment in Rule 16, declaring DRI official as proper officers under Section 2(34) for the purpose of recovery of drawback amounts erroneously granted under the aforesaid Rule 16 of the drawback Rules ADG, DRI could not have issued the show cause notice. 33. I find that the issue regarding jurisdiction of the DRI officials to issue show cause notice for recovery of drawback under Rules 16/ 16A had come up for consideration be .....

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uasi-judicial authority can confer jurisdiction on itself by deciding a jurisdictional fact wrongly. In our view this case cannot be applied to the present cases for the reason that DRI officers have been empowered to act as officers of Customs under Notification No. 17/2002-Cus.(N.T.), dated 7-3-2002, which reproduced below:- Directorate of Revenue Intelligence (D.R.I.) officers appointed as Customs Officers - Notification No. 19/90-Cus. (N.T.) superceded In exercise of the powers conferred by .....

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lumn (4) thereof to be the Deputy Commissioners or Assistant Commissioners of Customs for the areas mentioned in the corresponding entry in column (1) of the said Table with effect from the date to be notified by the Central Government in the Official Gazette :- TABLE Area of Jurisdiction Designation of the officers (1) (2) (3) (4) Whole of India Additional Director General,Directorate General of Revenue, Intelligence posted at Headquarters and Zonal/regional units. Additional Directors, or Join .....

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ase of the appellants that the DRI officers have usurped the powers themselves. This Notification has been issued by the Central Government under Section 4(1) of the Customs Act. 9.As regards the objection raised by the appellants for the Commissioner to adjudicate the case, it is seen that under Section 5(2) of the Customs Act, An officer of Customs may exercise the powers and discharge the duties conferred or imposed under the Act on any other officer of Customs who is subordinate to him. In .....

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h these questions were raised even during the adjudication proceedings and the Adjudicating Authority had dealt with these issues in his order. 10.In the Hukam Chand Shyam Lal Case, telephone connections of certain people were disconnected on account of the fact that the telephones were used to carry on forward trading which was illegal. In that case, while interpreting Section 5 of the Telegraph Act and Rules 421 and 422 of the Telegraph Rules, the Apex Court observed it is well settled that w .....

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stoms Officer for the whole of India. Show Cause Notices have been issued. Just because the DRI officer issued the Show Cause Notice no prejudice is caused to the appellants and they cannot argue that principles of natural justice have been violated because DRI officer issued the Show Cause Notice. This is an absurd argument which totally ignores Notification No. 17/2002-Cus.(N.T.)." 34. The ratio of this decision of the Tribunal was affirmed in Sri Meenakshi Apparels Pvt. Ltd. v. cc, Mumba .....

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issioner of Customs. The power of such Officer to investigate and issue show cause notice calling upon the assessee to pay back the draw back is not disputed. What is disputed is the power of the said authority to adjudicate the dispute. Relying on the circular dated 15th February 1999, which is issued in pursuance of the Notification No. 19/90 conferring the similar power where it has been held, though they have been conferred the power to investigate and issue show cause notice, adjudication i .....

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rge the duties conferred or imposed under this Act on any other Officer of Customs who is subordinate to him. Therefore, statutorily, it is provided that a higher Officer can perform the functions and duties of a subordinate Officer. It is by virtue of the statutory provision, the Director of Revenue Intelligence, who was appointed as Commissioner of Customs to investigate and issue show cause notice, has adjudicated the dispute regarding payment of duty draw back also. The Rule on which relianc .....

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s held that when a statute specifically states who should exercise the power, how power should be exercised and the same fashion is concerned, there is no quarrel with the legal proposition. Section 5(2) of the Act specifically provides that, a higher Officer of the Customs also has the power to perform functions and duties of a lower Officer. Therefore, a person appointed under Section 4(1) of the Act. by virtue of Section 5(2) of the Act, has the jurisdiction to exercise the power of a subordi .....

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at the recovery of drawback amount cannot be set aside on the ground of lack of jurisdiction on the part of DRI officials to issue show cause notices. Held accordingly. Merit issue 36. However to appreciate the issue on merit in its full matrix, remaining facts already on record are also examined such as:- (a) Statements of all the accused recorded on 19.8.04,23.08.04,25.08.04,16.09.04 and 30.05.2004. (b) Recovery of documents at the residence of Shri Kulbhushan Goyal. (c) Statement of so called .....

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s which were also auctioned. (f) Goods are sent to fictitious address and goods are not got released at Dubai port. (g) Report of the Consulate General of India at Dubai (h) Documents referred in DRI s letter addressed to Senior Departmental Representative. (i) Goods are later auctioned by Dubai Customs (j) If goods are not got released at Dubai and all containers are detained and auctioned at Dubai, how parallel sets of documents including bill of ladings were prepared showing good consigned to .....

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e evidences on record, which prove that all 41 consignments of export made by the units of its noticee contained in 7 containers namely Shri Kulbhushan Goyal and Ramesh Goyal, all goods (so called cycle parts) were consigned to Dubai only against parallel set of Bill of Ladings showing destination as Dubai. Details of all these containers are given in Annexure A, B & C to the show cause notice. Overseas enquiry report dated 10.12.2003 received through Consulate General of India at Dubai is a .....

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se are on record for perusal. 38. Section 139 (ii) of Customs Act, 1962 is also relevant which makes documents received from outside India in the course of investigation as admissible evidence. 39. Appellants during their statements before customs have contended their stand that they were receiving orders from their agents in Dubai and were consigning so called cycle parts to Egypt, Iran on the basis of such orders and accordingly they were declaring in their shipping bills. In their support, th .....

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erved about statements made by Shri Kulbhushan Goel and Shri Navdeep Goyal as follow: 5.4 I find that the noticees had contended that the goods, in question, were physically examined by the officers of Customs at CFS, Ludhiana and the same were cleared by them as bicycle parts. In this regard, I find that Shri Kulbhushan Goyal was confronted with three lists marked as Annexure A , B and C containing details of export consignments to Iran of his firms which were abandoned at Dubai and never reach .....

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ing No. LUHJEA 1612724 dated 21.12.2002 in respect of Shipping Bills No. 6621, 6620 and 6619 in which the name of the shipper was M/s M.K. International Ludhiana, name of the notified party was M/s Clarion Logistics Middle East, Jebel Ali, port of discharge and place of destination was jebel Ali, no. packages were 604, gross weight was 14885 kgs net weight was 14585 kgs and container No. was CRXU-281449-4. The Noticee had further admitted having seen Bill of Lading No. LUHDXB-1612724A in respect .....

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ane Tehran, Port of discharge was Bandar Abbas, Port of delivery was Tehran, the no. of packages were 197, gross weight was 4975 kgs and net weight was 4875 kgs. He had also admitted having seen Bill of Lading No. LUH DXB-1612724 in respect of shipping bill No. 6619 in which the name of the shipper was M.K. International, name of notified party was Saeb Trade Company, Tehran, port of discharge was Bandar Abbas, place of destination was Tehran, No. of packages were 206, gross weight was 4925 kgs .....

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its authenticity. 5.6 I find that Shri Navdeep Goyal, Branch incharge of the concerned Shipping Line was also shown the bills of lading No. LUH DXB-1612724, LUH DXB-1612724A, LUH DXB-1612724B and LUH JEA-1612724 and on being enquired about the discrepancies between the first three Bills of Lading and fourth one, he in his statement dated 30.03.2005 stated as under:- a) The first three B/L NN copies seemed to be forged and prepared by the shipper himself showing final destination as Bahdar Abbas .....

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at B/L copy and other documents were submitted to the Customs by the shipper for claiming drawback and had nothing to do with the shipping line; that he again clarified that shipping line never submitted drawback copy of shipping bill to the customs; that there were similar discrepancies in three other B/L shown to him. He also stated that the words LUH on a Bill of Lading defined the point of origin i.e. Ludhiana, JEA defined port of discharge i.e. Jebel Ali and the digits 1612724 defined the .....

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5.7 It is thus clear from the above statement of Shri Navdeep Goyal that the place of delivery in respect of the goods as mentioned in Annexure A , B & C was Dubai and not Iran and port of discharge was Jebel Ali (Dubai) and not Bandar Abbas (Tehran) as mentioned in the copies of Bill of Lading submitted by the Noticees to the Customs department for availment of drawback. This is further corroborated from the fact that the said goods were actually shipped to Dubai as is evident from the ove .....

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ills of Ladings were prepared on parallel basis. First set was for Tehran. After Customs examination, all goods were consigned to Dubai for which parallel set of bill of ladings were prepared. As per Consulate Generals report at Dubai all 41 consignments containing in 12 containers including 5 consignments/shipping bills stuffed in five containers were received at Dubai port. No release of these containers were taken by non-existent importers and later all these containers were auctioned by Dub .....

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legs to stand in view of numerous evidences coming on record evidencing that all containers landed at Dubai which were not got released by anyone and later auctioned. This is further supported by the facts that no export contracts have been produced. No LCs were opened. Actually advance payments from Dubai have been organized. The fact remains that payments were not received from the consignee. Actually factum of export, as such, has not been completed. 43. I have perused the report dated 10.12 .....

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o contain bicycle parts exported to Dubai by M/s.Monte International and M/s.Monte Metals, controlled by S/Shri Kulbhushan and Ramesh Goyal of Ludhiana, under Bills of Lading No.LuhDxb 01612516,01612581,01612601,0162550a, 0162489a, 0162554a, 0162479a from ICD, Ludhiana during October and November, 2002 have been abandoned and the goods contained therein are being put up for auction by Dubai port authorities. Intelligence further indicates that the goods are junk and were consigned to building ma .....

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containers were cleared at Dubai, the details of the importer, the description of goods and the price declared in the import bills filed before Dubai Customs; and (v) any other relevant information. A report along with documents generated during the inquiry may kindly be sent at the earliest so that we can initiate our enquiries here. In case of unavoidable delay, a line of confirmation about the containers lying at Dubai port for auction may be sent after necessary verification. Dated: 10.12.20 .....

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/- only. Sl. No. B.No. Shipper Notify party Description of cargo 1 LUHDXBB1612670 M/s.Monte International, Nirmal Market, Oswal Street, Miller Ganj, Ludhiana Al Shams Building Material, PB No.12694 Dubai Bicycle Parts 2 LUHDXB1612651 M/s.Monte International, Nirmal Market, Oswal Street, Miller Ganj, Ludhiana Al Shams Building Material, PB No.12694 Dubai Bicycle Parts 3 LUHDXB162700A M/s.M.k. International, Nirmal Market, Oswal Street, Miller Ganj, Ludhiana Abbas Rostum Bld. Material Tdg. PB No.2 .....

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containers were later auctioned as junk material was found which only fetched only 31,000 (dh) which is only ₹ 3,10,000/- in Indian rupees against total value of export amounting to ₹ 1,21,49,086/- 45. Interestingly advance payment for all these containers were organized and sent to India. Commissioner has rightly pointed out in his order that these were only hawala payments as no goods were got released by non -existent buyers. 46. To confirm the DRI-s findings, further interesting .....

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ry. Copies of Bill of Ladings showing consignee contry as Dubai were also submitted alongwith their letter. Letter of M/s.IAL Shipping Agencies (New Delhi) Ltd. also enclosed debit notes of charges incurred which included substantial storage charges/post landing charges. Debit Invoices clearly indicated vessels name, BL No. (LdhDXB) and container No. & number of days for which charges claimed. Actually these documents were recovered from the residence of Shri Kulbhushan Goyal. 47. Perusal o .....

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2651 Container No. CRXU 103105-7 Arrived: 15/12/2002 Cargo Moved for Auction 1/10/2003 Total Number of Days = 290 Days Total Charges: 11,641 (Dhs) = Rs.1,40,507/- 48. There are other similar invoices raised by M/s.IAL Shipping Agencies (New Delhi) Ltd. (a) Invoice No. DN/LCL/552/2005 BL No.LUHDxB 612731 Number of days = 267 Total charges 9346 Dhs = Rs.11,2,806/- (b) Invoice No. DN/LCL/548/2005 BL No.LUHDxB 1612700A Number of days= 274 Total charges 9900 Dhs = Rs.12,0,579/- (c) Invoice No. DN/LCL .....

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288 Total charges 10283 Dhs = Rs.1,24,116/- (h) Invoice No. DN/LCL/551/2005 BL No.LUHDxB 1612724 Number of days= 267 Total charges 9449 Dhs = Rs.1,14,049/- (i) Invoice No. DN/LCL/546/2005 BL No.LUHDxB 162479A Number of days= 337 Total charges 14825 Dhs = Rs.1,78,938/- 49. Despite clear facts emerging out of investigation, appellant tried to confuse the matter by asking cross examination of Shri Navdeep Goyal Branch Manger of Shipping line. Shri Navdeep Goyal did not appear but another official n .....

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0. Despite clear-cut fraudulent act emerging out of investigatons, appellant s insistence of cross examination of shipping line officials and departmental officers did not have any force. Mere insistence that goods were exported after examination was conducted by the departmental officers does not come to their rescue as investigations have unearthed modus operandi adopted by the appellants as discussed above. Despite non clearance of containers at Dubai, Advance payment through T.T. (telegraphi .....

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changed after documents were filed with Customs and customs examination were over. This was done to avoid examination by Customs. Role of Customs Officers is not beyond doubt and such large manipulations could not have been possible without their active participation. Restricting examination to 5% by showing importers at Tehran by the appellants was a link to this manipulation. 51. It also come out that no containers were got released but advance payment for each containers were received. Angle .....

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contended that as the payments of the goods in question has been realized by them in advance, they are not concerned with the further status of the goods. The had also contended that no enquiry under FEMA is pending against them which prove that payment was not realized through Hawala. They had further contended that the export was complete the moment the goods had left the territorial limits of the Indian waters. I find no merits in any of the above contentions of the Noticees. The above conte .....

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. As realization of foreign proceeds is an essential requirement for the purpose of claiming drawback. I find that the advance payments of the impugned goods were arranged through hawala channels as is apparently clear from fact that the impugned goods had neither reached the buyer in Iran nor the merchant broker in Dubai. It is self explanatory that no prudent businessman would continue making advance payments without receiving the goods in return. Thus it is clear that the Noticees had availed .....

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k Rules ,1995 and therefore the disbursed amount of drawback appears to be recoverable from them under Rule 16 of Customs & Central Excise Duties Drawback Rules ,1995 . 52. As all companies namely M/s.Monte International, M/s.Monte Metal and M/s.M.K, International are directly controlled by shri Kulbhushan Goyal and Ramesh Goyal and they have indulged in fraudulent export of spurious/junk goods, which were later abandoned at Dubai, role of these persons in committal of fraud clearly comes ou .....

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ng various documents clearly stand proved. They including their companies have rightly been put to penalties alongwith demand of erroneously claimed drawback. 53. In view of above discussion and findings, I uphold the order of the Commissioner of Customs confirming the recovery of drawback under Rule of Customs and Central Excise Duties Drawback Rules, 1995. No interference in respect of penalties imposed on m/s.Monte International, M/s,Monte Metal and M/s.M.K. International as well as penalties .....

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m of drawback and evidenced from record requiring recovery on merit as held by Member (Technical) OR Whether appeals against the Order-in-Original passed by Commissioner of Customs is to be allowed in view of findings that there is no jurisdiction with DRI officers to issue SCN and recovery of drawback is not sustainable on merits as held by Member (Judicial). ORDER PER: ASHOK JINDAL The following difference of opinion has been referred to me for consideration: Whether appeals against the Order- .....

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ld by Member (Judicial). 2. The facts of the case are not in dispute, therefore, the same are not repeated for the sake of brevity. 3. As the issue of jurisdiction is a legal issue, therefore, first I deal with the issue whether the show cause notice issued without jurisdiction or not. 4. I have seen in this case that the show cause notice has been issued by DRI, Delhi unit and as per the provisions of Rule 16 of the Customs and Central Excise Drawback Rules, 1995, recovery of any alleged errone .....

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of the Customs Act, 1962 was considered by Hon ble Apex Court in the case of Syed Ali-2011 (265) ELT 17 (SC) wherein Hon ble Apex Court observed as under:- 13. Section 2(34) of the Act defines a proper officer, thus : 2. Definitions. - …………….. (34) proper officer , in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs; It is clear from a mere look .....

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f assessment and re-assessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under Section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose in as much as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions. Moreover, if the Revenue s co .....

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which of course, would include re-assessment, working under the jurisdictional Collectorate within whose jurisdiction the bills of entry or baggage declarations had been filed and the consignments had been cleared for home consumption, will have the jurisdiction to issue notice under Section 28 of the Act. 7. Thereafter Hon ble Apex Court held that the Commissioner of Customs (Preventive), who is having territorial jurisdiction but not the jurisdiction to issue show cause notice under section 2 .....

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r was remanded to Hon ble High Court to decide such substantial question of law in the light of decision in the case of Syed Ali. Hon ble Punjab and Haryana High Court in the case of Era International Vs. Union of India (2011 (274) ELT 6 (P&H)) and Honble Andhra Pradesh High Court in the case of Sree Enterprises Vs. CC [2011 (274) ELT 12 (AP)] while dealing with an identical issue held that in the light of decision of Apex Court in the case of Syed Ali, the DRI officer cannot be held to be .....

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(supra). Therefore, this decision cannot be relied upon before me. Further, reliance placed on the decision of the Tribunal in the case of Bhagwati Components Manufacturing Co.-2016-TIOL-178-CESTAT-DEL. I find that the said decision has been given by this Tribunal on the basis of Notification No.44/11-Cus dt.6.7.2011 wherein the amendment has been made that DRI officers are the officers to issue SCN retrospectively under section 28 of the Customs Act, 1962. It is true that the amendment has been .....

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ce Tax Drawback Rules, 1995. The said provisions of the Rule 16 are extracted below:- Rule 16. Repayment of erroneous or excess payment of drawback and interest-has been paid erroneously or the amount so paid is in excess of what the claimant is entitled to, the claimant shall, on demand by a proper officer of Customs repay the amount so paid erroneously or in excess, as the case may be, and where the claimant fails to repay the amount it shall be recovered in the manner laid down in sub-section .....

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forth his defence as against alleged excess erroneously granted. The CBEC Circular No.24/2011-Cus dated 31.5.2011 which reads as under: 2.Reference have received from the field formations for specifying the proper officer for issuance of show cause notice and adjudication of cases of export under the drawback and export promotion schemes. 5. Further, it has been decided that the proper officer for the issuance of show cause notice and adjudication of cases under the provisions of Rule 16 of the .....

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to demand made by the proper officer, but the said demand has to made by the proper officer by way of issuance of show cause notice. Therefore, the question arises before me whether the SCN issued by DRI for recovery of erroneously granted drawback in terms of Rule 16 of Customs and Central Excise and Service Tax Drawback Rules, 1995 can be held valid show cause notice in the light of the law declared in the case of Syed Ali (supra). 13. Further, in the case of Era International-2011 (188) ECR .....

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the circular CBEC dated 31.5.2011 was only for the amendment limited for proper officer under Rule 16 of Customs and Central Excise and Service Tax Drawback Rules, 1995. The said circular did not consider that the DRI officers are to be the proper officers under Rule 16 of Customs and Central Excise and Service Tax Drawback Rules, 1995 but as no retrospective amendment carried out in the said rule so far as conformation of jurisdiction by DRI officers for issuance of show cause notice is concern .....

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single discrepancy was detected in regard to description, quality, quantity or value of the goods. All the consignments were examined found to be correct and the goods were assessed, thereafter let export order was issued. Further, I find that no incriminating documents found by DRI during the course of search at the residence of various partners or the officers of the appellants. The only allegation against the appellant is that the Consulate General of India at Dubai has given report dated 10 .....

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