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2016 (7) TMI 980 - CESTAT AHMEDABAD

2016 (7) TMI 980 - CESTAT AHMEDABAD - TMI - Pre-deposit of 1% of the total penalty - allegation of illegal export of Muriate of Potash (MOP) Fertilizer grade, without a valid license - Held that:- At this stage, the penalties imposed on the applicants may look very harsh, but, if the gravity of allegation/offence is considered, against the backdrop of evidences and at the stage of final hearing of these appeals, if it could be established by the Revenue that the goods exported was not Industrial .....

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other applicants. Considering overall circumstances of the case, the financial hardship expressed and also keeping in view the interest of Revenue, and considering the fact that the Hon'ble Gujrat High Court has remanded the matter for reconsideration, we are of the considered opinion that it would be appropriate to direct each of the applicants to make the specified pre-deposit against the penalty imposed as per the table. - Partial relief granted - Stay order modified. - C/11486/2014-DB C/ .....

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e advocates and the Ld. A.R. for the Revenue. 2. These stay applications were earlier heard by this Tribunal and by Order dt. 04.12.2014 pre-deposit of 1% of the total penalty imposed against each of the applicants was directed. As the aforesaid applicants did not comply with the said direction of pre-deposit, their appeals were dismissed vide order dt.12.03.2015. Aggrieved by the said orders, the applicants approached Hon'ble Gujarat High Court. The Hon'ble Gujarat High Court remanded t .....

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ing penalty under the Customs Act,1962. In the notice it was alleged that M/s Saraf Impex Pvt. Ltd. along with other applicants during the period 20.10.2007 to 12.10.2009, exported a total quantity of 33,432MTs of MOP against 198 shipping bills mis-declaring it mostly as Industrial salt; and the total value was also mis-declared as ₹ 50,71,42,466/-, against the correct value was ₹ 130,08,29,836/-. It was further alleged that the said quantity of MOP had been imported by M/s Indian Po .....

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is-declared as industrial salt instead of MOP and also undervalued, the learned Adjudicating authority mainly analyzed the test reports issued by M/s SGS India Pvt. Ltd, statements of the officials of M/s SGS India Pvt. Ltd, confessional statements of Shri Pravin Saraf, statements of other persons involved in the entire transaction of illegal export, Bank statements, report of receipt of MOP by the overseas buyers etc. Prima facie scrutiny of the said order, we find that the learned Commissioner .....

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overseas buyers that the goods received by them was MOP. It is not feasible at this stage to enter into scrutiny of all the statements and other corroborative evidences, but it would suffice if the observations of adjudicating authority relating to the evidences of Shri Pravin Saraf Director of the Appellant are visited which read as: 80.3 Shri Pravin Saraf in his statement dt.15.04.2010 admitted that he knew Shri Ghanshyam Oza of M/s Shivani Shipping since long and all exports from Mundra and K .....

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asiya and Taiwan with Shri Ashok Agarwal interaction with the buyers of MOP. He also informed that he used to interact with foreign buyer through e-mail; that both of them, he and Shri Ashok Agarwal had discussed modalities for the said exports with the buyers of MOP; that he had transferred funds through RTGS in the accounts of Shri Shantilal Mali for procurement of MOP; that they had exported MOP by declaring lower value on the export documents, however for bringing remittances of the actual v .....

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r submitting before Customs and another set showing higher value for bank for getting remittances in their bank account; that the set of documents presented before the Customs were signed by CHA persons and the documents which were presented in the bank were signed by him or his employees; that both the sets of shipping bills were sent to him by Shri Chhaganlal Arun of M/s Shivani Shipping but it was a fact and further he admitted that they had filed two different documents before two different .....

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ex Pvt. Ltd. had submitted different set of documents before two different authorities for some export consignments, the value mentioned in some of the Shipping Bills submitted by M/s Saraf Impex Pvt. Ltd. before the Bank officials for bringing in remittances is higher than the value mentioned in the Shipping Bills/Export invoices of similar nos. filed by them before the Customs authorities at the port of export for the same consignments. The documents like commercial invoice of higher value, SD .....

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t documents as Industrial Salt , Feldspar Powder , Quartz Powder , Talk Powder etc on the lower side, however, in order to bring in remittances of actual value they had forged the Shipping Bills and relevant invoices and presented the same before the Bank officials, which clearly establish malafide on the part of M/s Saraf Impex Pvt. Ltd. I also find that on verification of the documents supplied by the AGM, Bank of India, Kolkata Overseas Branch, Kolkata includes Export invoices, Exchange Contr .....

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f different value before the Bank officials which were of forged/fabricated nature. 85.3 I also find that Shri Pravin Saraf has submitted two different sets of Shipping Bills i.e. one Shipping Bill showing lower value before Customs and other Shipping Bill of same number showing higher value before Bank for getting higher remittances and the said facts were also admitted by Shri Sunil S Gokaran, Asst. General Manager, Bank of India, Kolkata Overseas Branch in his statement and he also stated tha .....

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had clarified that the signatures of Customs officials appended on the E.P. Copy of Shipping Bills submitted before the Bank officials and paper & font used in the said Shipping Bills were forged. Thus, the said forgery done by Shri Pravin Saraf by submitting forged documents were corroborated with the statement of Shri Arun wherein he stated that the signature on the documents which were submitted before Bank was not his and the signatures of the Customs officials were also different. Furth .....

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clearly established the fact of exporting M.O.P. a restricted commodity for export in the guise of Feldspar Powder, Industrial Powder, Quartz Powder etc. by M/s Saraf Impex Pvt. Ltd. Further, it was also established that the overseas suppliers had made correspondences with Shri Pravin Saraf of supplying M.O.P. or Potassium Chloride. Further, I find that the First Secretary (Trade), Embassy of India, Brussels informed vide their report dt.27.05.2011 that the goods exported by M/s Saraf Impex Pvt. .....

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e letter dt.30.04.2012 have forwarded the documents filed by the importers of the goods (exported by M/s Saraf Impex Pvt. Ltd) at the port of import i.e. import documents filed before Italian Customs, Export Invoices of M/s Saraf Impex Pvt. Ltd, Sampling and Analysis Report forwarded by M/s Saraf Impex Pvt. Ltd and Country of Origin Certificate issued by Chamber of Commerce. In the said letter, it was also informed that goods exported by M/s Saraf Impex Pvt. Ltd vide Invoice Nos.SIPL/EXP/181/09- .....

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the respective importers. However, the said goods were exported from India (Mundra & Kandla Port) as Industrial Salt/Feldspar Powder/Salt. 6. Similarly, the role of other applicants involved in the aforesaid act of export of MOP in contravention of the Fertilizer Control Order, the learned Commissioner recorded at Para 89.1 as follows:- 89.1 I further find that the goods exported by M/s Saraf Impex Pvt. Ltd were supplied by M/s Indian Potash Ltd to their agents at Dholpur, Jodhpur, Chhoti Sa .....

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nderstanding between them, the goods were supplied by these Agents/Dealer of M/s IPL in cash to Shri Shantilal Mali and Shri Vijay Singh, in original packing of M/s IPL. Further, it has come on record that in order to camouflage the actual buyer of goods. These goods were then transported from the place of Dealers/Agents to a godown situated at Shivganj, Rajasthan, where these goods were stored by the said consortium. In the said godown premises, original packing of the said goods was removed an .....

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d in the said consortium. 7. A quick glance at above observations of the learned Commissioner, leads us to formulate a prima facie view that the evidences adduced by the department against the aforesaid applicants prima facie establish the chain of events starting from the stage of procurement of MOP by M/s IPL, its diversion by the authorized dealers, procurement of packing material i.e. P.P. bags, change of packing in various godowns, transportation to various ports, its export declaring as in .....

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ate appearing for M/s Saraf Impex Pvt. Ltd., the alleged master mind of the illegal export of MOP assailing the evidences, argued that the confessional statements of Shri Pravin Saraf, cannot be relied upon as subsequently he has retracted the same. However, we find that answering the said argument, the learned Commissioner placed reliance on the judgment of Hon'ble Supreme Court in the case of Vinod Solanki Vs UOI - 2009 (233) ELT 157 (SC) and also observed that subsequent statements record .....

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against the involvement of each of the applicant in the illegal export of MOP keeping in mind the cardinal principles of evidence that evidences are weighed and not numberd. For instance, the statements of Mr.Pravin Saraf, Director of M/s Saraf Impex Pvt. Ltd and the report of receipt of MOP by the overseas buyers have remained uncontradicted. Needless to mention, the evidences challenged by the applicants would be considered at the time of disposal of the Appeal. 10. The learned Advocates have .....

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n ble Delhi High Court is contrary to the judgment of Hon'ble Bombay High Court in the case of Sunil Gupta Vs.UOI 2015 ELT 167(Bom.). The Hon ble Bombay High Court has upheld the constitutional validity of the retrospective amendment, therefore, at this stage, it cannot be construed that DRI has no power to issue Show Cause Notice for the period prior to 08.04.2011. It is a settled principle of statutory interpretation that in interpreting any provision its constitutional validity has to be .....

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Besides, the applicability of the said judgment to the notice issued after 08.4.2011 would be examined at the time of disposal of the Appeals. 12. In the result, therefore, it cannot be said that the aforesaid applicants are able to make out a prima facie case on merit for total waiver of pre-deposit of penalty. At this stage, the penalties imposed on the applicants may look very harsh, but, if the gravity of allegation/offence is considered, against the backdrop of evidences and at the stage of .....

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deficit of rain, shortage of fertilizers etc. 13. The learned Authorised Representative for the Revenue vehemently argued that while deciding the quantum of pre-deposit, against M/s Saraf Impex Pvt. Ltd, the statement of the Director Shri Pravin Saraf be considered wherein he has accepted the benefit of ₹ 3000/- PMT as illegal export proceeds and at least the said Appellant be asked to deposit the entire amount received by him. 14. Answering the said argument, the learned Advocate drew ou .....

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s is almost at standstill. Similar argument of financial hardship has also been advanced by Advocates appearing for other Applicants. 15. On going through the financial documents submitted by the learned Advocate for M/s Saraf Impex Pvt. Ltd, we find that though loss has been recorded in the provisional Balance Sheet for the financial year ending on 31.03.2016, however, we find that the total assets of the Company is around ₹ 12,75,469/- and the net worth of the company is not negative. Si .....

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