TMI Blog2019 (4) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... k Barthwal, learned counsel For the Respondent : Shri Prasanna Prasad, learned counsel ORDER PER S.C. SHARMA, J :- The petitioner before this Court has filed this present petition being aggrieved by impugned order No.01/COMMR/CUS/IND/CAA/ 2018 dated 24/05/2018 passed by Commissioner, CGST and Central Excise, Indore under the provisions of Central Excise Act, 1944 and Customs Act, 1962. 02-The facts, as stated in the writ petition, reveals that a show cause notice-cum-demand notice was issued under the provisions of Customs Act, 1962 to the petitioner alleging that the petitioner in association with others has exported the fabrics and ready-made garments by inflating the export value so as to avail undue and otherwise inadmissible export benefits advantage. It was also alleged that said exports were made in proxy dummy i.e. Code for Inland Container Deport, Dhannad and Kheda, District Dhar. The petitioner was the actual exporter of the same. 03-In the show cause notice it was proposed to reject the declared FOB value of such exports and to redetermine the same and to hold the petitioner as exporter of said goods in terms of Section 2(20) of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty imposed by discarding the procedure stipulated under Section 138-B of the Customs Act, 1962 amounting to denial of reasonable opportunity and therefore, the impugned order deserves to be quashed. 08-It has also been stated that the petitioner had no conscious knowledge of any over valuation / valuation of the export goods nor he has contravened any provision of the Customs Act, 1962. Thus, the question of making demand against the petitioner and imposition of penalty on the petitioner under Section 114(i) and (iii) and Section 144-AA of the Customs Act, 1962 does not arise. 09-It has also been argued that there is no tangible evidence to saddle the petitioner with any demand of penal liability that too without examination of the persons whose statement are considered relevant and used against the petitioner. Learned counsel for the petitioner has stated that impugned order without applying the provision of Section 138-B of the Customs Act is void ab initio. It has also been argued that the statement of witnesses could have been relevant only in cases of eventuality as stated under Section 108 of the Customs Act, 1962 without there being cross-examination and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice was neither legal nor supported by practice / precedent in the departmental adjudication proceedings. It has been stated that there were as many as 10 Panchnamas, 47 statements and 38 operations / visit reports on record and the number of total witnesses comes to 263 persons required to be summoned as prayed by the petitioner. There was no justification for making such a demand. 13-Respondents have placed reliance upon the judgments delivered in the case of M/s. Kanungo Company Vs. Collector of Customs and Others reported in (1973) 2 SCC 438, Surjeet Singh Chhabra Vs. Union of India and Others reported in (1997) 1 SCC 508, Telstar Travels Pvt. Ltd. Others Vs. Enforcement Directorate reported in (2013) 9 SCC 549, Naresh J. Sukhawani Vs. Union of India reported in 1995 Supp (4) SCC 663, Hindustan Coca Cola Beverage Pvt. Ltd. Vs. Union of India Others reported in (2014) 15 SCC 44, M/s. R. S. Company Vs. Commissioner of Central Excise passed by this Court in Central Excise Appeal No.24/2012 on 08/02/2017 and G. Bassi Reddy Vs. International Crops Research Institute and Another reported in (2003) 4 SCC 225. 14-Heard learned counsel for the parties at len ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be examined in presence of the petitioner or should be allowed to be cross-examined. 17-Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of Lakshman Exports Limited Vs. Collector of Central Excise reported in (2005) 10 SCC 634 and his contention is that in the aforesaid case the apex Court has remanded the matter back to the Additional Collector, Okhla to permit the assessee to cross-examine the representatives of the two concerns to show that the goods in question had been accounted for in their books of account and appropriate duty had been paid. It is true that the aforesaid issue was relating to principles of natural justice and fair play, however, the judgment delivered in the case of M/s. Kanungo Company (Supra) has not been considered by the apex Court nor the judgment delivered in the case of M/s. Kanungo Company, which is prior in time has been overruled. 18-Resultantly, there is no force in the arguments canvassed by the learned counsel for the petitioner. It is true that in some of the judgments delivered by the Delhi High Court and other High Courts, the order passed by the adjudicating authority has been set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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