TMI Blog2020 (6) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... his fact also does not absolve the appellant from the omissions and commissions which have been committed by them in forging the WPC approval. Quantum of penalty is reduced - appeal allowed in part. - Customs Miscellaneous Application No.50450 of 2019 in Customs Appeal No. 54220 of 2014, AND Customs Appeal No. 54226 of 2014 - FINAL ORDERs NOs.50696-50697/2020 - Dated:- 12-6-2020 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) APPEARANCE: Shri Kamaljeet Singh, Advocate for the appellant. Shri Sunil Kumar, Authorised Representative for the respondent. ANIL CHOUDHARY: In these appeals, the appellant is in appeal against the imposition of penalty under Section 112 and 114 AA of the Customs Act vide separate order-in-originals (Order-in-Original No. 28/NLB/Commr./I G/2014 dated 5.5.2014 in Customs Appeal No.54220 of 2014 and Order-in-Original No. 32/NLB/Commr./2014 dated 16.05.2014 in Customs Appeal No.54226 of 2014). 2. The Miscellaneous application has been filed in appeal No.54220 of 2014 for amendment of the appeal praying for addition of paras Y to Z (Additional grounds), in the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers/broadcasters. That the imported equipments were such as; DVB, MPEG encoders/decoders, Multiplexers, etc. were to be imported through WPC import licence, which is issued by WPC of DOT. That the major customers of the appellant were ETC Network, MH one TV Net work, etc. That the appellant used to provide the service by following three types of import procedures:- First procedure M/s ASL used to import the equipment in their own name and then sell it to the end customer alongwith installation of the same; Second procedure- the end customer used to import the equipment directly in their own name and M/s ASL used to provide technical consultancy and installation services to the end customers; Third procedure- based on High Sea Sale basis, in which M/s ASL used to order the equipment from foreign suppliers and act as importers till the time goods/ equipment reached Airport Authority of India, a high sea sale agreement was signed between M/s ASL and the end customers/ broadcasters. This agreement was then submitted to the Customs Department and the Importer s name was changed from M/s ASL to that of the end customer. 7. He further stated that in the 2nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was generated. A print out of ID NO. (generated) used to be taken along with the print out of the list of items to be imported. The list of items also indicate the corresponding ID Nos. Thereafter, the print out along with technical literature of the items be imported and other prescribed details, used to be filed in hard copy personally to the DOT. After about 10 to 15 days, DOT issued, the WPC licence, which was usually collected personally. 10. During the course of investigation, the copies of the WPC licences available in their files, resumed from the office of the appellant under Panchnama dated 6.9.2011, were forwarded to the Department of Telecommunication, WPC Wing, New Delhi to verify the genuineness of the same. Inquiries were also conducted with M/s. Aricent Technologies (Holdings) Ltd., Gurgaon with respect to the WPC licences obtained by them through the appellant. M/s. Aricent Ltd. submitted the details of the WPC licences along with the relevant bills of entry and other documents. The inquiries conducted with the DOT and Ms. Anuradha revealed that, M/s. Aricent had imported wireless transmitting and or receiving apparatus on the basis of the WPC import licences p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radha Diwan, as regards the forging of WPC licences done by them. 14. Shri Jaspal Choudhary in his statement dated 24.07.2012 after going through the print out of the documents /data retrieved from his lap top under Panchnama dated 23.07.2012, which were merely invoice issued to clients, proposal forwarded to the clients, notification issued by WPC Wing of the Ministry of Communication and Technology etc. It was further stated that the import licence and covering letters mentioned above were forged before issuance. Further, it was stated that before submitting the application for import licence, an online ID is required which can be generated only when the demand draft no. for the requisite fee had been fed/given in the system. That they used to feed any D.D. number (genuine DD) on the basis of the DD s issued in a particular month from a particular bank. 15. Further, in terms of the notification no.71/Customs dated 25.09.1953 issued under Section 19 of the Sea Customs Act, 1878, as amended vide notification no.48-Customs dated 20.05.67 under Section 11 of the Customs Act, 1962, the import of an apparatus for Wireless Telegraph into India is restricted in the case of transmit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1962 17. The show cause notice was on contest confirmed by order-in-original dated 05.05.2014 No.28/NLB/Commr/I G/2014 confirming the proposed confiscation with option to redeem on payment of fine of ₹ 20 lakhs. Further, a penalty of ₹ 10 lakhs was imposed under Section 112. Penalty of ₹ 50 lakhs on this appellant under Section 112 with equal amount under Section 114 AA. Further, penalty under Section 114 AA and 112 of the Customs Act was imposed on others as follows:- Name Designation Penalty under Section 114AA Penalty under Section 112 Ashok Gupta, Chairman, ASL ₹ 5 Lakh ₹ 5 Lakh Sanjay Sachdeva, CEO, ASL ₹ 5 lakh ₹ 5 lakh Jaspal Singh, Manager, ASL ₹ 5 lakh ₹ 5 lakh Amit Mahajan, Ex-Manager, ASL ₹ 2 lakh ₹ 2 lakh Anuradha Diwan, AM, ASL ₹ 2 lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation and penalty against the importing companies. So far the employees and Directors of this appellant company, whose appeals were also taken up together, their appeals were also dismissed on the observation that they have indulged in forgery and conspired in providing forged licences to the importers. 21. Ld. Counsel for the appellant, assails the impugned orders submitted that the two impugned orders dated 5.5.14 and 16.5.2014 against the appellant company and its employees/Directors. This Tribunal without hearing the appeal of the appellant company, the appeals of the employees/Directors has been disposed of, leading to mis-carriage of justice, as stated herein above. It is pertinent to mention that the submissions and grounds taken in these appeals by the appellant company were not raised in appeals of Director /employees and could not be considered by this Tribunal, while passing the earlier final order along with the importers appeal. 22. Thus, no findings were given by this Tribunal relating to this appellant as their appeals were not listed for hearing. 23. He further submits that the entire case of the Department is based on the sole ground that the WPC l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir written reply to the show cause notice, had contended that the statements were tendered under duress, threat or force, including arrest, and were not voluntary. The ld. Commissioner has in violation of the provisions of Section 138 B, neither cared to examine the witnesses of the Revenue nor offered them for cross examination, observing that none of the witnesses have retracted their statements recorded during investigation, and thus, the ground taken is by way of an afterthought. Further, observing that the contention of the appellant that the licences provided by them to the importers were genuine and that some of the equipments imported did not require any WPC licence at all, is not based on facts, as all such WPC licenses are alleged to be forged. Further, reliance was placed on the ruling in the case of Veera Ibrahim Vs. State of Maharashtra (1976) 2 SCC 302: AIR 1976 SC 1167. It was further observed that the Department is not required to prove its case with mathematical precision and can rely upon the preponderance of probability principles. So far the request for cross examination of noticee nos.2,3,4 and 7 made in their written submission is concerned, and also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be genuine and the same has been endorsed on these license copies. 3. Similar observation as in Para 1 above is applicable to licenses at Sl. No. 5 (xi) and 6 Ix). These licenses do not appear to be genuine and the same has been endorsed on these license copies. 4. Licenses listed at Sl. No. 4(i) to 4 (iv), Sl. Nos. 5(xx) to 5 (xxiv) and Sl. No. 6 (i) to 6 (xiv) of your letter dated 03.10.2011 have been issued from WPC Wing, 6th Floor, Sanchar Bhyavan, 20, Ashoka Road, New Delhi-110001 and may these may kindly be verified from the office. 5. All other licenses in the list has been found in the Dispatch Register and hence it may be concluded that these licenses are genuine. Kindly acknowledge the receipt. (emphasis supplied). 26. Ld. Counsel further states that from the aforementioned letter of the Asstt. Wireless Advisor dated 17/18.10.2011, it is evident that the DOT has done matching of the zerox copies of the licenses supplied, along with copy of the despatch register, both supplied by DRI. There is no categorical finding, whether the said licence numbers exists on the record of the DRI or not. Further, the report is vague as it is stated licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achdeva and Shri Jaspal Choudhary, as their statements are wrong and contrary to the facts of the case. Moreover, in spite of prayer, the truth and veracity of the statement has not been established by way of cross examination. 31. It is further urged that admittedly the appellant has received only ₹ 10,000/- as professional charges for pursuing in obtaining each WPC licence for their clients, which is inclusive of charges for filing online application, completing all other formalities and taking delivery of the licences from the DOT. Admittedly, there is no connivance between the appellant and importer for preparing and delivering fake/forged WPC licences. Admittedly, till date, no criminal proceedings or charge sheets have filed against the appellant in the matter. Further, none of the importers, for whom the appellant procured WPC licences, has initiated any criminal proceedings against the appellants in the matter. The ld. Counsel further urges that under the facts and circumstances, the whole case of Revenue lies on the inculpatory statements of the co-noticees, some of whom are directors/employees. Ld. Counsel states that these statements have got no evidentiary valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent/Revenue urges that the miscellaneous application filed by the appellant seeking to bring on record the additional grounds of appeal should be rejected. He further urges that an appeal is to be decided within the four corners of the impugned order and relies on the ruling of the Apex Court in the case of Dempo Engg. Works Ltd. 2015 (319) ELT 359 . He further relies on the precedent Final Order of this Tribunal being Final Order No.55965-55977/2017 dated 18.08.2017 , (which has been noticed hereinabove), in the case of batch of appeals by Aricent Technologies Holdings Ltd. and others. He further draws attention that the appeal filed by the Director of appellant-Shri Ashok Gupta, against the earlier final order of Tribunal has been dismissed by the Hon ble Delhi High Court 2019 (365) ELT 784 (Delhi). Accordingly, he prays for dismissal of these appeals. 34. Having considered the rival contentions, we find that the main allegations of the Revenue are based on (i) statements, (ii) report of the Asstt. Wireless Advisor DOT dated 18.10.2011, (iii) recovery of two rubber stamps of the WPC Wing of the DOT. So far the additional grounds of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em in forging the WPC approval. This fact however, indicate that there have been omissions and commissions on the part of the appellant, in few cases. However, there does not appear to be any grave amount of mischief in doing such omissions and commissions. Taking these facts into consideration, we take a lenient view in imposing penalty on the appellant and accordingly, the penalty on the appellant under Section 114 A is set aside and the penalty under Section 112 of Customs Act, 1962, is reduced as follows:- Sl.No. Description Under Section 112 Under Section 114AA 1. Appeal No. 54220/2014 Imposed Reduced to (Repees Two Lakhs Fifty Thousand only) 50,00,000/- 2,50,000/- 50,00,000/- Set aside 2. Appeal No. 54226/2014 Imposed Reduced to (Rupees Seven Lakhs Fifty Thousand only) 1,50,00,000/- 7,50,000/- 1,50,00,000/- Set aside 37. Thus, the appeals are allowed in part. Miscellaneous Application is also di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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