TMI Blog2007 (1) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal against Respondents 2 and 3 have been filed by the Commissioner by treating them as one of the others . This, in the submission of the respondents, is clearly impermissible as it was necessary for the Member, CBEC to have specifically indicated the names of the persons against whom an appeal was directed to be filed. The Commissioner (Adjudication) could not be vested with a discretion to decide who the others should include. It was therefore submitted that the appeals filed by the department against Respondents 2 and 3 were without jurisdiction and hence not maintainable. 4. Insofar as Respondent 1 is concerned, the following contentions were urged in the course of the hearings held before the Tribunal : (i) In all, 14 show cause notices were issued to the Respondent 1, which have been categorized in four groups in the impugned order of the Commissioner of Customs (Adjudication). Notices covered by Group I and II relate to alleged manipulation of export documents and consequent penal action under Sections 114(i) and under Section 117 of the Customs Act, 1962. Notices covered by Groups III and IV, on the other hand, relate to imports effected at Nhava Sheva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner, the order of Review passed by the Board and the appeal filed is not maintainable. In this regard reliance was placed on the decisions of the Tribunal. [Extrusion Processes Ltd. v. Collector - 1994 (69) E.L.T. 144; Collector v. MRK Frozen Food Exports - 1998 (103) E.L.T. 383; Collector v. Eastern Aeromatics -1999 (107) E.L.T. 208; Collector v. Swastik Coasters - 1999 (107) E.L.T. 533, Collector v. Lyka Labs - 1999 (109) E.L.T. 420; J Ice Creams v. Commissioner - 1999 (114) E.L.T. 965; JBS Capacitors v. Collector - 1995 (79) E.L.T. 131]. (v) Without any prejudice to the aforesaid contention as to the maintainability of the appeal, it was submitted that the appeal seeks to charge Respondent 1 with abetment for those acts of the Respondent which resulted in the issue of DEEC licences showing higher quantity of PFY for import . This is evident from para 4(vi) of the Review Order which reads thus: 4(vi).......................abetted the offence of manipulation in the weight shown in the shipping Bills which resulted in the issue of the DFEC licences showing higher entitlement of import of PFY......................for these acts of abetment, which resulted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the duplicate copy of Shipping Bill and their removal from the Kandla Custom House, etc., which though contained in the show cause notice were not sought to be revived in the revenue s appeal by this Hon ble Tribunal. The scope of the revenue s appeal cannot be expanded to revive all the allegations and charges contained in the notice in absence of specific grounds and reasons for doing so. It was therefore submitted that the various arguments made by the ld. DR relating to manipulation of duplicate copy of the shipping bill and their removal from the Kandla Custom House are not relevant or germane for the purpose of revenue s appeal and therefore need to be excluded from consideration. (ix) Having brought out the limited scope of the department s appeal, the attention of the Hon ble Bench was invited to the findings of the Commissioner in the impugned order in para 51 read with paras 36 and 37 of the impugned order. The relevant findings in the order are as follows : 36................... flie position that clearly emerges is that adequate evidence exists to establish that export promotion copies of the shipping bills have been tampered with and these altera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Customs, the CHA cannot be held liable. Shri Rajiv Kumar Bajaj, in his statement dated 27-3-1995 (in reply to query No. 16) had admitted that they inserted one figure on the left side of the weight column, after the S/Bs were passed, which shows that it was a post clearance alteration for which CHA cannot held liable. (x) The ld. Counsel submitted that the appeal filed by the Revenue does not contain any basis to contest the findings of the Commissioner that the manipulation in the EP copies of the shipping bills was carried out by the exporters themselves by using a portable typewriter carried by them from Mumbai to Kandla without any help from the CHA. None of the grounds taken by the department have any relevance to the aforesaid findings of the Commissioner which alone are relevant for deciding whether or not Respondent 1 was guilty of abetting the offence of manipulating the weight shown in the EP copy of the shipping bill. Since the allegations in the show cause notice relating to manipulation in the duplicate copy of the shipping bill as well as their removal from the Kandla Custom House are not the subject matter of the department s appeal, the arguments made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importer, even after the goods have been cleared through customs, it cannot be presumed that the CHA continued to be the agent of the importer. Though the decision is in regard to service of demand notice on the importer, the principle laid down in the said judgment is equally applicable to the present case. Therefore, if any manipulation in the Export Promotion Copy of the Shipping Bill had been carried out by the exporters after the goods have been cleared by the Customs, there can be no basis for presuming that the CHA was responsible for such action. (xii) Based on the above submissions, the Commissioner (Adjudication) had dropped the case proceedings against the respondent. In the appeal filed before the Tribunal, there is no effective challenge against the two submissions made by the respondents, which found acceptance with the Commissioner (Adjudication). The fact that the exporters statements were contradictory and false is not in dispute. The further fact that the respondent was absent from Kandla at the relevant time is also not in dispute. Also the fact that the exporters themselves had carried out the manipulation in the Export Promotion Copy of the shipping bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utted the above findings by producing any evidence to show that exchange control copies were tampered with by the respondents. Records like dock examination register taken over from the docks also show the correct weights showing that the respondents have presented the S/Bs to the docks showing the correct weight. The hotel records heavily relied upon by the Revenue to allege that Shri B.P. Kotak was personally involved, being present during the shipment and during the period of logging the DEEC books, do not show that Shri Kotak was in the hotel during or round about those dates. Personal involvement of Shri Kotak in any of the acts alleged is not established by any credible evidence. On account of these factors, the ld. Commissioner has extended the benefit of doubt and rightly dropped the penal proceedings against the respondents. The entire Revenue appeal and the arguments of ld. DR do not in any way discredit the above factors giving the benefit of doubt in favour of the respondents. Mere reiteration of the allegations in the SCN without meeting the reasoning in the findings of the ld. Commissioner cannot make it an improper or illegal order. 6. In the affidavit of M/s. Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Original Shipping Bill; The DRI has obtained from DGFT, all copies of licences and documents relating to our exports from Kandla and enclosed these in the R.U.D s; para 3.5(i) at page 14 of the standing order specifically stipulates that the DEEC copy of the shipping bill has to be cross-checked with the photocopy of the original copy of the shipping bill retained in the export filed; it is not the department s case that no collusion with the Audit Officers; in fact at page 24 of the impugned order the Commissioner (Adjudication) has held in a case where Departmental Officers are also concerned with the act, when there is no allegation of collusion against the officers, allegation of mis-declaration or clandestine removal cannot be sustained. When the documents are admittedly in the control and custody of the Customs Officers and when there is no allegation of collusion against any of these officer, allegation of their removal by the CHA and the employees without their knowledge or connivance cannot be justified; that it is proved that our original shipping bill was correct as shown in the DP copy; there is no register like examination register and a rough register contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mi - 1999 (110) E.L.T. 92 (S.C.), New India Assurance Co. Ltd., Shimla v. Kamla and ors - 2001 (4) SCC 342, East India Commercial Co. Ltd. v. CC. Calcutta - 1983 (13) E.L.T. 1342 (S.C.), Blue Blends (India) Ltd. v. CC., Mumbai - 2001 (136) E.L.T. 411 (Tri. - Mum), A.R. Gupta v. CC, Mumbai - 2000 (126) E.L.T. 1152 (Tri.), Suraj Sales Corporation v. Commissioner of Customs, Mumbai - 2002 (149) E.L.T. 1413 (Tri. - Mum), ICI India Ltd. v. CC (Port) - 2003 (151) E.L.T. 3s36 (Tri.), Taparia Overseas (P) Ltd. v. Union of India - 2003 (161) E.L.T. 147 Bom. He also in his written submission in reply to the affidavit mentioned admission of fraud by importers, corroborated by co-accused. Retraction is afterthought, no evidence of force threat, coercion etc. produced. Further in support of his contention he has relied on the decision in the case of Naresh J. Sukhawani v. Union of India - 1996 (83) E.L.T. 258 (S.C.), Surjeet Singh Chhabra v. Union of India - 1997 (89) E.L.T. 646 (S.C.), M.B. Moose v. CC, Bangalore - 1986 (25) E.L.T. 804 (Tri.), Aarti Leathers Pvt. Ltd. v. CCE, Ahmedafad - 2001 (136) E.L.T. 1255 (Tri. - Mumbai), Sudesh Kumar Mittoo v. CCE. Jaipur - 2001 (136) E.L.T. 100 (Tri. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no need of further investigation. In this regard he relied on the decision in the case of Shri Katki Gurakhu Karyalaya - 2003 (158) E.L.T. 757 (Tri. Kol), Besco Ltd. -2001 (137) E.L.T. 168 (Tri.-Kol). As regard the effect of fraud which is normally vitiate any act or order. He relied on the decision in the case of Indian Bank v. Satyam Fibres (I) Pvt. Ltd. - 1996 (005) SGC-0550-SC and CC, Kandla v. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.). With regard to enhancement of penalty he relied on the decision in the case of Abdul Khader v. Union of India - 2003 (157) E.L.T. 517 (Kar HC), La Grande Projects Ltd. v. CC, Mumbai - 2002 (150) E.L.T. 719 (Tri.), Ratan Exports Ind v. CC, Chennai - 2000 (123) E.L.T. 808 (Tri.), Ram Narain Poply v. CBI - AIR 2003 SCW 3257 etc. and strongly requested the Bench to hold the order of the Commissioner. 10. We find that the department has filed the appeals against J.L. Kocker, B.P. Kotak, Sunil Hemani, Kanthaswamy, Radhakrishna Spg. Pvt. Ltd., Rajeev Bajaj, K.V. Gopal Krishnan, Ashok B. Rajani, Sharan Export, P.A. International, Sabu George, Rajkumar Hasija, Deepak Bajaj, Trabsworld Shipping Services, Srinivas Rajappan, Dee-Gee Exports for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harges and allegations are general and no specific allegations of their involvement in alternation of the Shipping Bills is discussed in the Show Cause Notices. And also he did not find direct evidence implicating persons discharged. Therefore, in our opinion we do not find any justification for enhancement of penalty to CHA. who have been discharged by the Commr. after going into great details and on the basis of available records. We would, therefore, not like to re-open their cases. It may be mentioned that we have already dismissed the appeal of Dee Gee Exports for non-compliance. Therefore, the impugned order will sustain against them. 13. As regards the appeals of Santosh Textile, Sharan Exports, Rajkumar Hasija, P.A. International, Ashok B. Rajani and Blend Syntec, it is seen that the ld. Counsel appearing for the appellants have raised certain points in the affidavit filed by them with supporting documents annexed therewith running into thousands of pages containing various figures and facts which were not produced earlier before the lower authorities. Similarly the department also in their reply have quoted various decisions and referred to various facts and figures whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the findings is needed by the Commissioner. Both the sides have cited several case laws which were not cited before the Commissioner earlier. Therefore, it is necessary that the same are pursued by the Commissioner. We, therefore remand all the appeals to the Commissioner for fresh adjudication except the appeals of the Revenue seeking enhancement of penalty and imposition of penalties on CHAs. Revenue s appeals in this regard are dismissed. (Pronounced in Court) Sd/- Krishna Kumar Member (J) 15. [Contra per : C. Satapathy, Member (T)]. - I have carefully perused the proposed order recorded by the Hon ble Member (Judicial). Since there are allegations of fraud and manipulation in the shipping documents, which were handled by the CHA and their employees as well as the exporters, and since apart from the allegations made by the Department, the exporters are also blaming the CHA for the manipulations and the CHA is denying the same, I am of the view that a partial remand will constrain the adjudicating Commissioner to arrive at the truth. Hence, I am of the view that the appeals filed by the exporters as well as the Departmental appeals filed against the exo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers about the alleged manipulation by the CHA and CHA is denying the same. Therefore, I am unable to pursue myself to agree with the views expressed by the ld. Member (T). Mere basing on the exporters claim that the CHA is responsible for the manipulation of Shipping Bills in view of specific denial of the same by the CHA and in absence of specific finding on the charge of conspiracy against the respondents. Whereas, the order of ld. Member (J) discusses the alleged contraventions made against exporters and as well as the CHA and assigned reasons, thereupon, after due consideration of facts and law. They are not hitherto specifically dissented by the ld. Member (T). Therefore, I would agree and concur with the views expressed by ld. Member (J) and order that the appeals filed by revenue are to be dismissed and the appeals filed by M/s. P.A. International, M/s. Sharan Exports, Shri Rajkumar Hasija and Shri Ashok B. Rajani be remanded back to the adjudicator fbr determination after applying the principle of natural justice. 20. Finding of the ld. Member (J) is on overall appreciation of the facts, circumstances of the case, and the evidence available on record. It is seen that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order ignored and do not make any appreciation in respect of RBI General Repatriation Form (GR Form) and Part F of the Advance Licence. The documents i.e. GR Form which after export submitted to the Custom Department and thereafter lying with the RBI would appears to be vital documents to bring home charges against the exporters/or to absolve them. There is no finding as such, about these documents. These documents have to be brought on record and a finding is to be arrived at after hearing the submissions of exporters. The case law cited in respect of them by the exporters shall be considered by the adjudicator as to their applicability and implication. 23. With the aforesaid observations [Devengere Cotton Mills Ltd. v. Commissioner of Central Excise - 2006 (198) E.L.T. 482 (S.C.)], I would concur with the findings reached by the ld. Member (J) and answer the reference accordingly. (Pronounced in court on 8-1-2007) Sd/- T. Anjaneyulu Member (J) Majority Order The appeals of M/s. P.A. International, Ashok Rajani, Blend Syntec, Rajkumar Hasija, M/s. Sharan Exports, M/s. Santosh Textile (Appeal Nos. C/903 to 905/02, C/926 to 928/02) are allowed and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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