TMI Blog2018 (10) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... which had been settled and closed by the Settlement Commission in 2009 itself. Initiation of proceedings is incorrect when the issue has already been settled by the Settlement Commission. This is against the statutory mandate laid down under provisions of Section 127J of the Customs Act, 1962 which stipulates that no matter covered by such orders shall be reopened in any proceedings under this Act or under any other law for the time being in force. Appeal allowed. - FPA-FE-8/HYD/2014, FPA-FE-9/HYD/2014 - - - Dated:- 12-10-2018 - Justice Manmohan Singh Chairman For the Appellant : Ms. Jyoti Rajput, Advocate, Ms. Radha Rani Tarkar, Advocate For the Respondent : Shri Prashant Pandey, Legal Consultant, Mrs. Aagam Kaur, Legal Consul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2011 given before the officers of Enforcement Directorate denied the allegations being made against the appellants. 6. The notice was issued on the ground that the appellant has declared the value of the imported furniture from China i.e. declared furniture worth ₹ 5,23,09,733/- as ₹ 3,77,19,136/- and the differential amount was paid in India to the credit of M/s Shenzhen ED and Nicename Import and Export Company of China, a company based outside India during Aug 2006 to Aug2007 otherwise than through an authorised person and in association with acquisition of foreign exchange outside India and the Managing Partner of the appellant received payments of ₹ 1,50,00,000/- from Shri Viqaruddinof M/s. Red Rose Construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability. 9. The learned counsel for the respondent does not dispute that the appellant had requested for cross-examination of witness which is denied by the respondent on various reasons. It is also stated by the learned counsel for the respondent that mere bald retraction of the earlier statement would not absolve the burden of proof from the accused when the evidence is available against him, therefore, the charges against the appellant under Section 9(1)(b) is well established. The counsel for the respondent in fact has quoted the impugned order and requested that the appeal be dismissed. 10. There is no denial on the part of the learned counsel for the respondent about the order passed by the Settlement Commission. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relied upon by the DRI in issuing the show cause notice in the Customs case was based completely on third party documents and evidences without any independent evidences corroborating them. 13. It is argued by the appellant that the bold allegations of violation of Section 3(b), 3(c) and 3(d) cannot be merely made on certain presumptions and assumptions unless the initial burden of corroborating them with material evidence is discharged. Making payment of foreign exchange or receiving any foreign exchange from other than authorized channels or making any unauthorised financial transaction needs to be duly proved by providing cogent details of how, when, from whom, by what manner they have been made. If any allegation of the transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done with the object of encouraging exports. The failure to comply with the export obligations would naturally imply that the duty ought to have been paid and, thus, the liability is not only for the duty, but also for penalty and interest. 15. It is stated on behalf of the appellants that ED without conducting any independent inquiry has simply on the basis of few documents sent by DRI issued a show cause notice to the appellants for alleged under-valuation of furniture imported from China during the year 2006-07 and thereby alleging violation of the provisions of section 3(b), 3(d) and 3(c) of the Foreign Exchange Management Act, 1999 ( the Act ) read with Section 42(1) of the Act. 16. The show cause notice relied solely on the DR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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