TMI Blog2019 (10) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... against them in the earlier proceedings specifically when revenue had not filed any appeal against the earlier order. The penalty imposed under section 112 (a) reduced to ₹ 20 lakhs and 10 lakhs respectively - other part of demand upheld - appeal allowed in part. - Customs Appeal No. 1123-1124 of 2009 - A/86787-86788/2019 - Dated:- 10-10-2019 - Mr. S.K. Mohanty, Member (Judicial) and Mr. Sanjiv Srivastava, Member (Technical) Shri Brijesh Pathak, Advocate, for the Appellant Shri Manoj Kumar, Authorised Representative for the Respondent ORDER These appeals are directed against the order in original no. 136/2009/CAC/CC/RBT dated 10.09.2009 passed by Commissioner of Customs (EP), Mumbai. By the impugned order Commissioner has held as follows: i. I hold that M/s PIL are the importers in this case and therefore I confirm the duty of ₹ 47,62,720/- along with applicable interest against M/s PIL. ii. I confiscate the goods valued at ₹ 36,80,016/- under Section 111(o) of the Custom Act, 1962 and impose a redemption fine of ₹ 15 lakhs under Section 125 of the Customs At, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was cross examined. Since Shri Jayesh Tanna and Shri Pankaj Mehta did not appeared for cross examination, they had requested the adjudicating authority not to rely upon their statement for proceeding against the appellants as has been held by the Hon'ble Bombay High Court in its order dated 11th October 2018 in Writ Petition No 11351 of 2018, Kurele Pan Products Pvt Ltd [2014 (307) ELT 42 (ALL)] and Swagat Synthetics [2018 (360) ELT 900 (Guj)]. He also submitted that in the first adjudication proceedings the penalties imposed on the appellants were ₹ 20 Lakhs on M/s PIL and ₹ 10 Lakhs on Shri Daud M Dawood. While in remand proceedings Commissioner has imposed penalties of ₹ 50 Lakhs and ₹ 25 lakhs respectively contrary to the orders of Tribunal in case of Goenka Impex Pvt Ltd [2009 (233) ELT 102 (T.Del)] and Maestro Motors Ltd [2005 (183) ELT 467 (T-Del)] 3.3 Arguing for the revenue learned authorized representative submitted- In the remand proceedings Commissioner has allowed the cross examination of the persons requested and all the efforts were made for producing those person. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tia, advocate for Shri K.L. Sharma stating that Shri Sharma was unwell and hence requested for adjournment. 30. Next personal hearing was fixed on 16.01.06 and intimations vide letter dated 21.12.05 were sent to all concerned. The intimations sent to Shri Deepak Ganatra and M/s. PIL returned with a remark that the addressee is unknown. On 16.01.06 Shri J.C. Patel, Advocate for Shri Jayesh Tanna appeared before my predecessor and it was clarified to the advocate that Shri Tanna was required to be present only for cross examination by M/s. PIL and Mr. Dawood. 31. Vide letter dated 17.01.06, Shri Sujay Kantawala who had not appeared for the hearing scheduled on 16.01.06, requested for another date of hearing. Shri C.R. Hirani, advocate for K.L. Sharma vide letter dated 20.01.06 had requested for another date of hearing as he also did not attend the scheduled PH on 16.01.06. 32. Next personal hearing was fixed on 24.02.06 and intimations vide letter dated 03.2.206 were sent to all concerned including M/s. Rashmi Shipping Agency. The intimations sent to Shri Deepak Ganatra, Shri Dawood and M/s. PIL returned with remarks that the addressees a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2006(72)RLT 786-Cestat, Mum, the statements of Tanna / Ganatra etc are of no relevance and cannot be relied upon vis- -vis my clients. b. In the previous adjudication proceedings, my clients, by written submissions dated 29th August 1998 had interalia stated that the duty liability is on the Importer. My clients had sold the goods on High Seas to M/s. Taneja Exports. It is on record that it was Mr. Jayesh Tanna who had approached the CHA Mr. Pankaj Mehta along with the high sea sales contact and other import documents of the goods, the same were delivered from the docks gate to Shri Jayesh Tanna as transport was arranged by Mr. Tanna. This is clear from the testimony conducted on 8 th March 2006. Hence, Jayesh Tanna was acting on his own and used his own mind and it is clearly evident that my clients never know that M/s. Taneja Exports was created by certain other persons and clients were never aware that the advance licence which was issued in the name of Taneja Exports and which was used for clearance of the goods was a forged one. Mr. Jayesh Tanna, in his statement dated 18.4.2004, has clearly stated that Mr. Deepak Ganatra, his relative, who is engaged in tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iterated submissions made earlier and drew attention to his letter dated 25.4.2006. He requested that proceedings against his clients be dropped. 39. As directed by the Hon ble CESTAT, opportunities of cross-examination of various witnesses were allowed and it is seen that none of the witnesses except Shri Pankaj Mehta have appeared for cross-examination by the subject notice. The two notices have been given ample opportunity of personal hearing and their written submissions made by their advocate Shri Sujay Kantawala are before me. In the wake of available evidences and submissions, I proceed to decide the subject SCN with respect to the two noticee M/s. Peacock Industries Ltd. (PIL) and Shri Daud A. Dawood, Director of M/s. PIL whose case has been remanded for denovo consideration by the CESTAT and is the subject matter of this adjudication proceedings. 40. On the basis of evidences available on record, submissions made by these two noticee through their counsel from time to time and cross examination of Shri Pankaj Mehta, I have to decide the following: i) whether M/s. PIL, who is the High Sea Seller, is liable for duty of ₹ 47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 2 of this order, have revealed out that High Sea Buyer (M/s. Taneja Exports) is a non-existent entity as it was stated by the Jurisdictional Assistant Commissioner, Central Excise Customs that there was no such address as 74, Polo ground, Jaipur existing at Jaipur. Most striking feature noticed in the so called High Sea Sale Agreement with M/s. Taneja Export is that M/s. PIL s address is 74, Polo ground, Udaipur as its Director M/s. Daud A. Dawood and the fake (non-existent) address of the High Sea Buyer is 74, Polo ground, Jaipur. It can be seen that the address of both is identical and the one of High Sea Buyer is shown as Jaipur and High Sea Seller is Udaipur. I am unable to satisfy my conscience that identical address of High Sea Seller and High Sea Buyer could be mere coincidence. Be as it may, the claim of High Sea Seller that he was not aware of fake address of High Sea Buyer is amusing since he was in constant contact with High Sea Buyer even after the sale is said to be over. Based on these facts I am not inclined to accept the submission of M/s. PIL that they are not at all concerned with the issue after their (so called) High Sea Sale Agreement. 43. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of respondent to avail benefit of concessional rate of duty. I apply the ratio of this judgment in the subject case wherein not only the High Sea Buyer is found to be a fictitious firm but the High Sea Seller has also appropriated a portion of the goods which were cleared Duty Free by the fictitious firm. The fact that the goods, after clearance came back to High Sea Seller clinches the issue that the High Sea Seller i.e. M/s. PIL is the actual importer. 46. M/s. PIL have knowingly entered into High Sea Sale transaction with an non-existent entity namely M/s. Taneja Exports and have also received a part of the consignment (176 Mts of HDPE) cleared duty free (under DEEC licence) routed back to them. They have apparently succeeded in getting the goods cleared duty free by a fictitious entity thereby violating the conditions of the notification 204/92 dated 19.5.92. The High Sea Sale transaction with M/s. Taneja Exports was made by Shri Daud A. Dawood in his capacity as the Director of M/s. PIL. In the wake of above, it appears that M/s. PIL and Shri Daud A. Dawood are responsible for the various acts for which the goods are held liable for confiscation under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-acceptable reasons. In fact, it is not all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in- chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safe-guarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, Awake! Arise! . There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross- examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, in our opinion, there has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our-opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant. Naresh J Sukhwani [1996 (83) ELT 258 (SC)] : It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white-collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to have the contraveners prosecuted under Section 135 etc., separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC, like Section 120-B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator's report) and the oral evidence of the witnesses in proof of the offences committed under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve 4.5 In view of the decision of Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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