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TMI Blog2008 (6) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... the importer had unauthorisedly diverted the goods in the local market in violation of actual user condition contained in Notification 30/97-Cus., dated 1-4-1997 and the provisions of Chapter 7, Vol.-I Handbook of Procedures of Export & Import Policy AM-1997-2002. Shri Virendra K. Gandhi, Shri Anant B. Timbadia, Shri Sharad M. Shah, Shri Sunil Agarwal, Shri K.B. Rai and Shri Pankaj Mehta of M/s. Rashmi Shipping Agency, CHA, had aided and abetted Shri Paresh Parekh in evasion of customs duty by financing/using forged supporting manufacturers' documents for effecting duty free clearances of the goods and were also monetarily benefited in the sale of goods in the local market, and thus rendered themselves liable to penal action. Show cause notice dated 10-12-1999 was issued to the importer and others, proposing recovery of customs duty of Rs. 9,74,52,797/- under the proviso to Section 28 of the Customs Act, 1962, jointly and severally from the importer and the five high seas sellers, together with interest and proposing imposition of penalty under Section 112(a) and (b) or Section 114A of the Customs Act, 1962 on the above as well as on Shri Virendra K. Gandhi, Shri Sunil B. Agarwal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their statements, It is a fact that Shri V.K. Gandhi had opened L/C for import of plastic granules in the name of other firms, viz, M/s. Biswanath Industries Ltd., M/s. Petro Impex (I) Ltd. and M/s. Par Petro Chem Pvt. Ltd. who had purportedly sold the material on high seas sale basis to the advance licence holder M/s. Kunal Overseas Ltd. However, everybody has not retracted their statements. The fact is that Shri Paresh Parekh, transporters, CHA, godownkeeper and others have not retracted statements. (They had corroborated the charges framed against the noticees). These statements which clearly describe the role of Shri V.K. Gandhi and others in the commission of the offence have been ignored by the Commissioner of Customs. (iii) There are sufficient evidence regarding the involvement and participation of Shri V.K. Gandhi in the evasion of the said customs duty through independent witnesses and their statements who are not co-accused which has not been considered by the Commissioner. The transporters and the warehouse keepers have categorically stated that the goods were delivered to different parties on the instructions of Shri Timbadia, Shri Malkan Singh and Shri Ajit that M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta made on 25-1-1999, which were recorded on or after the date of affidavits, wherein they have reaffirmed their earlier submission as correct. They had involved Shri. V.K. Gandhi, Shri Anant Timbadia, Shri. Sharad Shah, themselves and others. In any case retractions made as an afterthought and made after long period cannot be treated as an evidence in favour of the respondents. That the retraction affidavits are inordinately delayed and hence required to be ignored is brought out by the fact that the statements of Shri Pankaj Mehta was recorded on 30-11-1998, 23-12-1998, 30-12-1998, 19-1-1998 and 25-1-1998. He has not retracted on the first available opportunity but only on 25-1-1998. Statements of Shri K. B. Rai was recorded on 27-11-1998, 21-1-1999 and 28-1-1999. Retraction affidavit is dated 25-1-1999 which is several weeks after the statement was recorded. Also to be noted is that the statement of 28-1-1999 has not been retracted. (vi) Similarly, there are no sufficient grounds to ignore the roles of others. In exonerating Shri Sunil Agarwal, the Commissioner had not taken into account an important piece of evidence, i.e. payment of warehouse charges for the period after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available in the statement of Shri Babulal Keshavlal, supervisor of M/s. Rajesh Kumar Kantilal & Co. dated 15-1-1999. It has been stated that they received the cash from Shri V.K. Gandhi in their Delhi office and the said amount was paid to Shri Paresh Parekh of M/s. Kunal Overseas Ltd. at the instructions of Shri Ajitbhai (Shri Ajit Toprani). This piece of independent evidence has also been rejected. (xii) For exonerating Shri Anant Timbadia, the Commissioner has pointed out that Rs. 30 lakhs were given to Shri Anant Timbadia through 7 different cheques/pay orders from the State Bank of India and Dena Bank. This has been observed by the Commissioner from the Bank's statement. In fact, the Bank's statement does not reflect the names of the parties and the number of cheques/pay orders. The Commissioner's observation in this respect is not justifiable. (xiii) While giving benefit to M/s. M.K. Industries, the Commissioner has totally ignored the statement of Shri Bupendra Shah on the ground that his statement has been retracted. The Commissioner in his own observation in the later part of the adjudication order, has cited judgments to the effect that the retraction would have no mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atements of all the parties have not been made available. In view of this, the Commissioner's observation is not correct. (xvii) M/s. Rashmi Shipping Agency, CHA, has acted in connivance with Shri V. K. Gandhi, Shri Anant Timbadia and Shri Paresh Parekh and have knowingly aided and abetted in the evasion of customs duty to the tune of Rs. 9.7 crores. The statements of both the partners of the firm reveal the conspiracy, the procedure and the methodology adopted by them. They have also shown their own involvement in the evasion of customs duty. Their retraction is only an afterthought. Even after the retraction, in their further statements, they have confirmed what has been stated earlier was correct and admitted that they did it knowingly. The Commissioner has not taken into account even this admission but relied only on the retraction. In addition to this, there is sufficient independent corroboration available, through the statements of warehouse keepers, transporters, brokers and employees of the main conspirators. All these people are independent witnesses and the evidence is independent. None of them have retracted. (xviii) The Commissioner, while deciding the show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai is correct, legal and proper? and (iii) Whether, by an order passed under Section 129B of the Customs Act, 1962, the Tribunal should modify the said order and hold all the persons and companies mentioned above as involved, be liable to penal action under Section 112(a) and 112(b) or 114A of the Customs Act, 1962 ? or (iv) Pass such other order, as the Hon'ble Tribunal may deem fit and proper." 6. The Revenue does not challenge the Commissioner's order on the ground that he has not recorded any finding on the contravention of the provisions of Section 111(o) of the Customs Act by the importer, which contravention was alleged in the show cause notice on the basis that the imports were exempt from payment of customs duty only on observance of the condition in Notification 30/97 of utilisation in the manufacture of goods for fulfilment of export obligation. Only if the Revenue had contended in the appeal that the importer had contravened the provisions of Section 111(o), can the plea that the goods should be held liable to confiscation be raised. In the absence of any such challenge, there is no merit in appeal No. C/637/02 against the importer and it is accordingly dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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