TMI Blog2020 (9) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... finalisation of such Shipping Bills cannot be questioned or agitated by the Department subsequently by initiating show cause proceedings against the exporter, the appellant herein. In this case, the Department has initiated show cause proceedings and confirmed the adjudged duty demand under Section 28AAA of the Act on the appellant. The provisions contained therein for recovery of duties are applicable only in the eventuality, where an instrument issued to a person has been obtained by him by means of 'collusion'; or 'willful misstatement'; or 'suppression of facts'. We find that the learned Commissioner has dealt with such statutory provisions and their application to the facts of the present case at paragraph 10 in the impugned order. He has not particularly referred to any communication addressed by the office of Development Commissioner functioning under the DGFT to hold that the appellant got the MEIS scrip issued by the said authority by means of collusion, willful misstatement or suppression of facts. Further, there is no material evidence available on record to prove that the competent licensing authority under the Foreign Trade Policy had initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal No. 85078 of 2019 - A/85727/2020 - Dated:- 11-9-2020 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Alok Barthwal along with Shri B.B. Mohite and Shri Mahadeo Londhe, Advocates for the Appellant Shri M. Shamshad Alam, Authorized Representative for the Respondent ORDER This appeal is directed against the impugned order dated 20.11.2018 passed by the learned Commissioner of Customs, Jawaharlal Nehru Custom House, Nhava Sheva II, Raigard. 2. Brief facts of the case are that during the period April' 2015 to December' 2017, the appellant had exported ropes of various types, classifying the same under RITC 56079090 and was being issued with the scrips under the Merchant Exports of India Scheme (for short, MEIS ) against such exports by the competent authority; the Department initiated show cause proceedings vide Notice dated 08.01.2018, alleging that the appellant had exported Commercial Ropes made of PP (Polypropylene) and PP Polyester by declaring the same under RITC 56079090 for availing MEIS benefit of 5%, whereas, as per the ITC (HS) Code specified by DGFT, the Ropes made of Polyethylene or Polypropylene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents submitted by the appellant. He further submitted that since all the material particulars were available with the Department, the charges of 'collusion', 'willful misstatement' or 'suppression of facts' cannot be leveled, justifying confirmation of duty demand under Section 28AAA of the Act. He has referred to the impugned order at paragraph 11, wherein the proposals made in the show cause notice for imposition of penalties on the Director and the CEO were dropped by the adjudicating authority on the ground of lack of evidence of indulgent of those officials in the activities concerning suppression etc. The learned Advocate has referred to such findings in the impugned order to state that the Director of the appellant company vide his statement dated 27.09.2017, recorded under summon had deposed that he only decides the classification under CTH/CETH or RITC in respect of the goods exported by the appellant. Thus, the learned Advocate submitted that since the Director/authorized officer through whom the appellant company runs its day to day business affairs were exonerated from the proposed penal action, the appellant cannot be made to suffer as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issues addressed by the learned adjudicating authority in the impugned order. Accordingly, on a query from the Bench on such aspect, the learned Advocate submitted that the issue of finalization of assessment and re-opening of the same without challenging such order of assessment is a pure question of law, which can be raised for the first time before the Tribunal, even if the same was not the issue dealt with at the adjudication stage. He has relied upon the judgment of Hon'ble Supreme Court in the case of Assistant Collector of Central Excise Vs. Ramdev Tobacco Company, reported in 1991 (051) ELT 0631 (S.C.) to justify such stand. Further, he has also referred to Rule 10 of the CESTAT (Procedure) Rules, 1982 to submit that the Tribunal can permit consideration of new plea or grounds involving substantial question of law urged at the time of hearing of appeal. We are convinced with the submissions made by the learned Advocate that the issues raised before the Tribunal are pure question of law and have direct bearing on the ultimate confirmation of the adjudged demands. The learned AR appearing for Revenue has not particularly expressed any reservations regarding considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end the said period by another thirty days. (4)........................................................................... (5)........................................................................ 9. Sub-sections (2) and (3) of Section 129D above are relevant for consideration of the issue involved in the present case. On careful reading of the above statutory provisions, it transpires that the Commissioner of Customs is empowered under the statute to determine the quality or state of being of any decision or order passed by a subordinate officer in accordance with the law; if he is satisfied that the same is not legal or proper, then he may pass an order, directing the subordinate officer for filing of appeal against such decision or order before the first appellate authority i.e. the Commissioner (Appeals) under Section 128 ibid. The above statutory provision has prescribed a time limit for filing of appeal before the Commissioner (Appeals). 10. In the present case, it is an undisputed fact on record that the order(s) passed by the proper officer of Customs during the relevant period 2015-2017, in permitting exportation of goods including classification and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered redundant. This position in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot, be countenanced. The view taken by us also gain support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund, the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which if we may term it so is in the nature of execution of a decree/order. ............... 12. Though, the above judgment was delivered in context with refund claim under the Central Excise statute, but the principle decided therein is squarely applicable to the facts of the present case inasmuch as legality or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant got the MEIS scrip issued by the said authority by means of collusion, willful misstatement or suppression of facts. Further, there is no material evidence available on record to prove that the competent licensing authority under the Foreign Trade Policy had initiated any proceedings against the appellant alleging acquisition of the scrips in a fraudulent manner. The allegation with regard to MEIS benefits wrongly availed by the appellant does not have an independent nexus to the Customs Act, 1962 inasmuch as such scheme designed for the Merchant Exporter are dealt with under the Foreign Trade Policy (2015-2020) and Foreign Trade (Development Regulation) Act, 1992. Thus, the administration of MEIS squarely falls within the jurisdiction of the office of the DGFT and not the Customs authorities. The division of exercise of authority between the DGFT and Customs authorities is well recognized judicially and should be respected to prevent abuse of due process of law. The Hon'ble Supreme Court in the case of Titan Medical Systems Pvt. Ltd. Vs. Collector of Customs, New Delhi, reported in 2003 (151) ELT 254 (S.C.) have held that if the license issuing authority i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification of the ropes. In my considered opinion, sufficient evidence does not exist to the individuals and considering the nature and scope of the infractions of law, penalising the exporter company would meet the ends of justice and penalising the individuals is not required. 15. The exporter-appellant is a private limited company, incorporated under the Companies Act, 1956. A public/private limited company is a legal entity, a juristic person established and recognized as such under the statute. It has its existence separate from its shareholders and directors. Since, it is an independent legal entity, it can sue and also be sued in its own name. But unlike a human being (a natural person), it lacks both body and mind. It cannot act just like a human being. Thus, it can act only through the living individuals as per the set-out rules contained in the Articles of Association, the charter of an incorporated company. Board of Directors are those individuals, through whom the company acts and does its business activities. For managing smooth day to day business of the company, the individual director(s) may be assigned with some task of performance or the power may be delegated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirms that the Rope in question comprised of Polypropylene as the primary/major ingredient. We find that in the statement dated 27.12.2017 recorded under summon as well as in the reply to the show cause notice, the appellant had specifically contended that the exported rope was made of Polypropylene, Polyethylene, Polyester and colour pigment. However, such submissions of the appellants have not been discussed or counteracted in the impugned order. Further, we also find that the arguments advanced by the appellant that composition of rope is required to be ascertained on the basis of weight and not by percentage was also brushed aside in the impugned order without assigning any reason. Moreover, submission of composition/analysis report of ropes by CIPET, Hyderabad though was discussed in the impugned order at paragraph 5, but no convincing observations were made as to why such report cannot be accepted for adjudicating the dispute. We also find that the specific request made by the appellant for cross examining the concerned chemical examiner has not been considered by the adjudicating authority. Furthermore, it is also noticed that the adjudicating authority has not recorded a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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