TMI Blog2018 (1) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... er ( Judicial ) None for the Appellant [ written submission ] Dr. Jeetesh Nagori, A.R. for the Respondent-Revenue ORDER Per Dr. D.M. Misra: These two Appeals are filed against the Order-in-Appeal No.JMN-CUSTM-000-APP-136-15-16 dated 29.12.2015 and No.JMN-CUSTM-000-AAPP-137-15-16 dated 29.12.2015 passed by Commissioner (Appeals), Customs, Ahmedabad. 2. Briefly stated the facts of the case are that M/s Global Export Import had exported Dehydrated White Kibbled Onions against Shipping Bill No.F-2703/07-08 dated 4.6.2007 to one M/s CATZ International, Holland. Subsequently, the said overseas buyer M/s CATZ International, Holland through their representative M/s Spicexim, Navi Mumbai made a complaint that fraud has been committed by the exporter by sending groundnut shells instead of Dehydrated White Kibbled Onions . On the basis of investigation, show cause notice was issued to various noticees including the Appellant proposing penalty under various provisions of the Customs Act, 1962.On adjudication, penalty of ₹ 5.00 lakhs was imposed on the Appellant Shri Bhupatbhai Ramjibhai Bhut under Section 114 (iii) of the Customs Act, 1962 and ₹ 8.00 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant has involved in the alleged export of ground shell. Hence, they have been wrongly penalized in the impugned order. 4. Per contra, the ld. A.R. for the Revenue submitted that on the basis of investigation conducted at various ends namely, CHA, Shipping agent, DGFT, owner of storage place of cargo who had given the premises on rent to the Exporter, office of Chamber of Commerce which has issued certificate of origin of goods, inspection agency, plant quarantine office, Quality Control Office, office which issued HACCP certificate, banks, mobile phone operator, driver of the trailer used as transportation of export goods and exporters S/Shri Bhupatbhai Ramjibhai Bhut and Deepak Laxmanbhai Bhut to establish their involvement of the exports as well as persons connected with the offence of the case. The sum and substance of the investigation revealed that the Appellant Shri Bhupatbhai Ramjibhai Bhut who is also a partner in M/s Nature Exports, impersonating as one Mr.B.P. Bhojani, opened a bank Account with forged documents showing himself as an introducer and subsequently obtained IEC from DGFT fraudulently. Website was created through Shri Deepak Laxmanbhai Bhut in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2014 and the Appellant was also informed about the said cross-examination. Shri S.M.Verma appeared before the adjudicating authority but the Appellant again failed to avail the opportunity of cross-examination. Shri S.M.Verma reiterated his earlier statement and requested for exemption from personal appearance in future. Letter to driver Shri Darshan Singh was sent was returned by the postal authority with the remark as undelivered . The Appellant Shri Bhupatbhai Ramjibhai Bhut requested for postponement of cross-examination due to Diwali vacation. Cross-examination was fixed on 25.2.2015 and the Appellant was informed of the said date. Neither the Appellant nor their representative appeared. Shri Vinubhai Bhikabhai, Shri Rasik Jermabhai Goletar , Shri Bhushan Thakkar appeared before the adjudicating authority who reiterated the statements before the officers and requested for exemption from further appearance before the adjudicating authority. 6. Ld. A.R. submits that since ample opportunities for cross-examination have been allowed, therefore, there is no merit in the argument of the Appellant that there was violation of principle of natural justice. He submits that the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat on all these occasions, the witnesses on whose cross-examinations were sought by the Appellant had been present and reiterated their statements. In these circumstances, considering the principle of law laid down in Patel Engineering Ltd. s case(supr) by Hon ble Bombay High Court and Manidhari Stainless Steel Wire Pvt. Ltd. s case(supra) by Hon ble Andhra Pradesh High Court, non-availing of the opportunity of cross-examination extended by the adjudicating authority, in the remand proceedings , in my opinion, has not resulted in violation of principles of natural justice. 8. While confirming the penalty, I find that the ld. Commissioner (Appeals) after analysis of the evidences available on record, reached the conclusion as follows: 5.2 It is the allegation of Revenue that the appellant - 2 impersonated as B P Bhojani created a fictitious firm in the name of M/s Global Export Import, Bhavnagar as a proprietor and in connivance with Appellant - 1 exported goods viz. Groundnut Shells instead of declared goods viz. Kibbled Dehydrated White Onion by this dummy firm from Pipavav Port and filed Shipping Bill No. F-2703/07-08 dated.04.06.2007 through CHA M/s Meridian Freight Forw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons issued to Shri V R Ratlami, Microbiologist Lab Technician C/o M/s Global Export Import with respect to Certificate of Quality and Analysis, at the said address 52/B, Hadanagar Bhavnagar was retuned back un-delivered and the owner confirmed that the said premises was never let out to M/s Global Export Import. 5.7 I find that M/s Five Star Food Export Inds, Mahuva have confirmed that they have not carried out business with M/s Global Export Import and they have not issued any copy of HACCP Certificate to them. A fraud has been made by the said firm M/s Global Export Import in their name. 5.8 I find that in order to hide his real identity, Appellant-2 misused cellphone registered in the name of Shri Prajapati Kiranbhai with malafide intention that if anything goes wrong authority will implicate the person in whose name the cellphone is registered. 5.9 I find that Appellant - 1 and 2 hired godown at Mota Khuntava and purchased 108 tonnes of Groundnut shells and 1300 (empty) Boxes and kept the same there and with the help of labourers packed the Groundnut shells in Boxes. Appellant - 1 and 2 hired another godown at village Dungar and shifted/transported the Boxes fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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