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TMI Blog2001 (2) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... der they are dealt with together. 2.The brief facts of the case are that M/s. H. Kumar Gems had imported a consignment of 120 large silver bars under bill of entry 40119, dated 11-8-1997 under the IGM No. 573/97, dated 9-8-1997 vide AWB 058-36 12-7055, dated 7-8-1997, and claimed clearance against the special import licence P/L/2313129, dated 17-6-1997 for an amount of Rs. 13.50 crores issued under seizure, of Bajaj Auto, Pune, subsequently transferred in the name of Krishna Enterprises, Bihar, Giridhar International, Barmer and finally in the name of the appellant Prior to this clearance under the same licence the three consignments were cleared on 6-8-1997 and 8-8-1997 under the Bill of Entry No. 4011/97, 4012/97 and 3922/97 covering 600 TT gold bars weighing 69,984 gms valued at 2,71,13,968/- each and 220 pieces of silver bars weighing 735.76 kgs. valued at 3,71,53,375/-. The duty amount involved Rs. 15,39,972 each for first two items and 35,17,830 for the third item. While scrutinising the bill of entry in respect of 120 silver bars valued at 2,03,78,000 weighing 3802.98 kgs. certain doubts arose regarding the validity of the licence. On enquiry with the DGFT, Pune, which had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce note to ITC HSN Import item 1997-2002 in contravention imposed under Section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992 and Sections 11(2)(e)(f)(n) and Section 112 of the Customs Act by unlawfully importing silver/gold and the bill of entry under the said licence which were liable for confiscation as mentioned above. The show cause notices were issued to above persons to show cause why this silver slabs should not be confiscated and also prior 3 consignments under Section 111(d) with (m) of the Customs Act; and why fine should not be imposed for the past 3 consignments and why penalty should not be imposed under Section 112(d) of the Customs Act. By corrigendum dated 10-6-1998 paragraph 28 of the show cause notice was substituted and another corrigendum dated 4-6-1998 for imposing penalty under Section 114A of the Customs Act, and demanding duty at appropriate tariff rate under proviso to Section 28(1) of the Customs Act, as they have not fulfilled the requirement of the Notification 117/94, dated 27-4-1994, as these clearances were made without the valid import licence by suppressing the fact regarding the licence issued. On the request of the appellant H. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of show cause notice under Section 124 of the Customs Act with annexure dated 29-5-2000. In support of the appeal, Mr. V.S. Nankani, learned Advocate for H. Kumar Gems has filed a synopsis, and submitted arguments in support of the appeal. According to him, before producing the licence he made enquiries by checking up weekly bulletin issued by DGFT authorities, wherein the number and the date of the said licence issued were found to appear. In the show cause notice in paragraphs 25 and 26 no allegation is made against the appellant H. Kumar Gems relating to conspiracy and the forged licence. They are bona fide purchasers for value without notice to the alleged forgery. The affidavit of H. Kumar Gems shows the enquiry made before purchasing the said licence. The production of the fresh special import licence and acceptance of the same and the debit by the Customs authorities would not render the goods liable for confiscation. The Customs authorities at Ahmedabad have sought the opinion of the DGFT, New Delhi by the letters from July 17 to 31 August, 98 and DGFT has clarified that the valid SIL can be accepted in respect of the goods already cleared. The policy provides that they can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard is not acceptable. Three clearances were made on the forged documents. Subsequent production of valid licence does not cure the defect. When import is on admitted forged licence and clearance is sought goods automatically stands confiscated. No adjudication order as such is essential, which is only a formality. The knowledge is immaterial. Forgery vitiates everything. The observation of the DGFT authorities regarding the subsequent production of the licence is contrary to the Policy and the Import and Export Act. The licence at the time of the clearance is relevant i.e. why the subsequent production of SIL are not considered in the impugned order. The correspondence of the DGFT and the department shows that the authority had no right to give such a clarification. Chapter 15.1 of the Policy deals with the utilisation of special import licence. Paragraph 4.15 of the Policy shows that the DGFT has acted beyond it. There is no remedy for confiscation. The importer is only up to the clearance or confiscation. The subsequent production of SIL has no value. 1999 (110) E.L.T. 92 (S.C.) = AIR 1960 SC 415 (A), AIR 1990 SC 1173, 1990 (45) E.L.T. 9 and 1999 (113) E.L.T. 757, 758 and 760 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in that regard by the department. The Commissioner has not touched the statement and there is no investigation in that regard. No charge of conspiracy on the appellant no knowledge about it and the SIL was fit to be accepted as per AIR 1978 SSC 851. The ruling of the Tribunal is not challenged. The scope of the licence and its validity from all angles is certified by the DGFT clarification, in view of the subsequent production the SIL was valid on the date of the import. The notification in page 32 comes to the aid of the appellant. No dutiable goods were cleared in August 97 and there is no allegation of suppression in 4-6-1998 corrigendum which is only alleged that 10-6-1998. Proviso is not clearly followed and penalty under Section 114A will not survive. Regarding the additional evidence he has submitted it is the conduct of the past only. Knowledge cannot be presumed, show cause notice is received on 9-6-2000. Regarding 15 licences part payment is made in that regard. Order refers to investigation not shown in the show cause notice. By producing the said documents gap cannot be filled up and they are not relevant. Shri J.C. Patel, learned Counsel has also replied that if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials as above contains similar charges against the appellants, covering 22 licenses. It is a direct, appropriate and substantial piece of evidence to prove the department's case. Earlier, it could not be brought on record as not available. Application is dated 26-7-2000. 8.Heard both sides on the above application. Perused the Impugned order and appeal memorandum. Sri V.S. Nankani, learned Counsel has urged that production of document, not relied on before lower Authority, at the stage of this appeal as in the nature of additional evidence, and not admissible as per AIR 1978 SC 851 and 1989 (44) E.L.T. 760, 1987 (32) E.L.T. 53. Supreme Court Judgment cited above in the case of Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi in none of the 6 headings (A) to (F) does not deal with the above aspect. In 1987 (32) E.L.T. 53 in the case of Gunavant and others v. Collector it is held that production of additional evidence is not permissible at review stage to remove lacunae in presenting the case at the proper stage and fill in gaps revision. Scope of show cause notice for suo moto revision intended to test the legality and property of the decision or orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and sought clearance. Earlier under the same licence, 2 consignments of 600 TT Gold bars weighing 69,984.00 gms. Value of Rs. 2,71,13,968.00 each were cleared under Bill of Entry Nos. 4011 and 4012/97, dated 8-8-1997, and one consignment of 220 pieces of large silver bars weighing 7035.76 kgs. Valued at Rs. 3,71,53,375.00 under Bill of Entry No. 3922/97, dated 6-8-1997 with duty amount of Rs. 15,39,978.00, Challan No 39/8 each and Rs. 35,17,930.00, Challan No. 38781, 11-8-1997 consignment was covered under IGM No. 573/97, dated 9-8-1997 and vide AWB No. 058-3612-7055, dated 7-8-1997. Special Import Licence was for Rs. 13.50 crores. It was transferred from M/s. Bajaj Auto Ltd., to M/s. Krishna Enterprises, Bada Chowk, Bihar, and from them to M/s. Girdhar International, Barmer, and finally to appellant H. Kumar Gems. While scrutinizing the Bill of entry No. 4019/97, dated 11-8-1997, certain doubts regarding validity of the licence arose. Enquiries were made from the office of DGFT, Pune which had issued licence, and it revealed that original licence was pending in their office for carrying on certain amendments, and the licence presented was a fake one. It is from the proper source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrendered to DGFT and its regional office may be reissued afresh in public interest, with such conditions and for such purpose as may be deemed fit by the Govt. under clause 15.9, a request seeking clarification on any provision of the policy or Handbook of Procedure, Importability or Exportability of items under ITC (HS) classification of Import Export items, may be made to DGFT in the prescribed form in Appendix 22. As per clause 4.13 of the policy, if any question or doubt arises in respect of the interpretation of any provision contained in the policy, the said question or doubt shall be referred to DGFT, whose decision therein shall be final and binding. If any question or doubt arises whether a Licence has been issued in accordance with the policy or if any question or doubt arises touching upon the scope and content of licence, the same shall be referred to the Director General of Foreign Trade for a decision. 12.Now coming to the case laws cited by both sides, the appellant H. Kumar Gems has relied on 1997 (71) ECR 894 in the case of Jyoti Steels Bearing v. Commissioner and 1987 (30) E.L.T. 493 in the case of P.R. Parekh v. Collector in the arguments, and in reply dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejection of Import License on the ground of misdescription not valid (para 8). The subject matter of the instant case are altogether different. (c) 1993 (67) E.L.T. 384 in the case of Lalit B. Ravani v. CC, Tribunal has held that, date of shipment altered in Bill of Lading so that goods imported covered by Import Licence produced by appellant - Personal involvement of appellant in falsification of date of Bill of Lading, however not established beyond doubt. Import Licence produced not valid on date of shipment. Matter remanded to Collector to consider the alleged claim of the appellant of possessing alternative licences even at the time of import of goods. 1988 (34) E.L.T. 98 (T) East Punjab Traders v. Collector is relied on (in para 4, 5, 9, 11 to 13). This decision helps appellant, in support of consideration of alternative licence subsequently produced requires consideration for the validity of import, on the basis that the above Licence were valid on the date of import in the instant case on hand. (d) 1996 (85) E.L.T. 255 (T) in Rajasthan Breweries Ltd. v. CC, Raigad it is held in para 5 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Executant illiterate woman - Thumb impression obtained on sale deed by marking her to believe that she was executing a gift deed in favour of her daughter - His representation is as to character of document - Sale deed is totally void and not violable suit not maintainable - This subject matter is not at all relevant in any manner to the instant case. (h) 1990 (45) E.L.T. P-9 in the case of J.B. Trading Corporation v. Union of India (Madras High Court) - Customs - Definition of Importer - between the date of importation and date of clearance of goods for Home consumption, Person holding himself out to be the Importer, is the Importer - Importer firm found to be fictitious and Licence alleged to have been obtained by fraud. After completion of Importation another party not entitled to represent itself to be the importer. Section 2(26) of Customs Act (Paras 11 to 13). Confiscation - Import on fake documents by fictitious firm fraudulent - Goods liable to confiscation under Section 111(d) of Customs Act (Para 15). Import of Licence - Confined to import on a licence lawfully obtained. Another person not entitled to substitute itself as imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant M/s. H. Kumar Gems and the order of Commissioner of Customs, New Customs House, Near IGI Airport, New Delhi dated 10-3-1997 and its acceptance at a future stage at pages 465 and page 470 at Annexure V and also at pages 393 to 463 of paper book. In accordance with it, appellant M/s. H. Kumar Gems by its letter dated 17-6-1998 requested 3 days time to produce SIL for Rs. 2,01,77,030.00 as valid on the date of importation of goods after purchase from market on 20-6-1998 as per the direction of Sri Vijaya Singh, Commissioner of Customs, Ahmedabad on 17th instant for the purpose of releasing goods has furnished Eight SILs valued at Rs. 2,04,57,200.00, dated from 19-6-1997 to 25-6-1997 with a request to debit them to the extent of Rs. 2,01,77,030/- as required for B.E. No. 4019/97, dated 11-8-1997. Similarly, on 24-7-1998, the same appellant has produced 15 SIL dated from 24-6-1997 to 25-7-1997 for Rs. 8,67,54,874.00 to debit towards B/E. No. 3922, 4011 and 4012/97, dated 6-8-1997 and 9-8-1997 on the basis of the above documents, it is apparent from the correspondence between the department and DGFT as produced by the Respondent, in response to the order in the misapplicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Trade, New Delhi has finally stated that - "on the letters 17-7-1998 and 5-8-1998, they have clarified that the consignment can be cleared against freshly acquired SIL provided the Licence presented for clearance is valid on the date of import in terms of Para 4.15 (c) of Handbook of Procedure (Col. 1). In the context of your letters dated 10-8-1998 and 20-8-1998, it is requested that even if the SILs have been acquired by importers subsequent to the consignments imported against such SILs can be cleared provided the SILs are valid on the date of import of the consignment, if such SILs already surrendered turn out to be fake SILs, then these importers would have no alternatives except to acquire fresh SILs from the market". "- Your attention is also drawn to paragraph 4.15 of the Exim policy according to which if any question of doubt arises touching upon the scope and content of Licence, the same shall be referred to the DGFT whose decision shall be final and binding." 15.The above clarification is attacked by the learned Senior Counsel for respondent as opposed to policy and Import and Export Act, and so not acted upon in the Impugned order. When once SIL produced at the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oking of extended period of limitation, it is necessary to consider the notification first. As already discussed above clause 15.1 of policy of relevant period, regarding the duty leviable on Silver and Gold imported under SIL is at concessional rate under Notification No. 117/94-Customs. As per the above notification and Explanatory note thereunder the condition to be complied to get benefit there- under is that the "goods are covered by Special Import Licence issued in terms of Export and Import Policy from 1-4-1992 to 31st March, 1997 of Ministry of Commerce, Govt. of India. In this case there is no dispute about the issue of SIL's in accordance with the above policy. At the time of Import as per the clarification of DGFT under clause 4.15 of the policy, goods covered by SIL's produced afresh, and they were valid. So regarding duty element, the appellant M/s. H. Kumar Gems has complied the above condition and is eligible to concessional rate of duty. The contention of the said appellant is upheld. Regarding the demand duty, Para 24 of show cause notice, dated 2-2-1998 is silent. On 120 pieces of silver slabs imported under B/E 4019/97, dated 11-8-1997 and also in previous 3 diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As argued by the appellants M/s. H. Kumar Gems, the demand of differential duty is not substantiated by cogent reasons. The show cause notice dated 2-2-1998 was silent. 4-6-1998 corrigendum demanded it. 10-6-1998 tried to bring the case of suppression in very vague terms. Impugned order discussion regarding the terms of proviso to Section 28 (1) of Customs Act is highly exaggerated without any supporting material. Invoking of extended period to demand differential in duty under corrigendum and in the Impugned order is not based on sound and firm footing. The department's case is highly developed in the Impugned order from the show cause notice dated 2-2-1998 for the clearance of 11-8-1997 and earlier same consignment of 6-8-1997 and 8-8-1997, after a lapse of nearly 10 months by the corrigendum dated 10-6-1998, and blown beyond proportion in the Impugned order with the sole object of recovering duty. This cannot be upheld. The contention of the appellant M/s. H. Kumar Gems, in the light of facts and circumstances in written submission by way of reply and supported documents gain more weight. 17.Now coming to the questions of imposing penalty under different provisions of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 bills of entry covered by the SIL, valid at the relevant time. So concessional rate of duty is claimed and paid, which is below the Tariff rate. So there is a short levy. Under corrigendum dated 10-6-1998 suppression of the facts regarding the Licence is alleged. But, in view of the finding already arrived at in the above paras, that in view of production of afresh SIL - Subsequent to seizure of goods, and its acceptance and clearance of above goods, on the clarification of DGFT, New Delhi, that SILs were valid at relevant time. There is no liability to pay differential duty as claimed on the appellant, and even if there is any such liability, it is time barred, and extended period cannot be applied. What should have been disclosed regarding the Licence is not clear. Department cannot expect any person to disclose that fake SIL was produced for the clearance of goods, in the normal course of Human conduct, that too before tax recovery authority. So under these circumstances, the imposing of penalty under Section 114(a) of Customs Act cannot survive, as it has not application. The contention of M/s. H. Kumar Gems in that regard is upheld. The appellant is entitled to succeed. 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot admitted specifically. She denies any knowledge and/or participation in committing any breach whatsoever. Statement of Mrs. Vidya Mahadik nowhere implicates the appellant. Alleged SIL duly bore the authentication from the Nationalised Bank. There was not material to doubt the Authentication of the bank and the genuineness of the SIL. No statement seems to have been recorded as on date pertaining to the due authentication or otherwise of the said documents. With that missing link patently on the record, there cannot be any reason for suspicion or inference to raise in any transaction that appellant had any active or tacit role to play. Appellant had no connection with Sanjay Rai, Shrenik Mehta, Suresh Chopra in any manner whatsoever in relation to this particular transaction. The reply of Shrenik Mehta to the specific question in the statement of 29-8-1997 is very clear. She had no role to play as such. There is no allegation against her though being aware that the said SIL was not genuine had transacted in the same with full knowledge. The transaction of the appellant is bona fide in nature without any knowledge/ participation in any abetment, conspiracy in procurement of such l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received in cash either from Exporter or Purchaser depending on the situations. All the dealing were finalized by Shrenik Mehta. She was only communicating the message. After 20 years working in the trade, she developed contacts with Importers/Exporters for acquiring Import licences. She came to know about Sanjay Rai from whom Shrenik Mehta used to purchase licence. On one of the occasions, he wanted to contact Shrenik Mehta in regard with sale of one of the Licence, but he was out of station. She asked Sanjay Rai, that he can enter into deal with her, if so desires for which he agreed, and commission was fixed at 0.10 paise. She got in touch with the appellant, who told her that one party was prepared to purchase the licence at a premium of 12.65% and she agreed for commission of 0.05 paise. Appellant told that M/s. H. Kumar Gems was prepared to pay only part premium of Rs. 40 lakhs in the first instance, and she agreed to it. After contacting Sanjay Rai deal was confirmed, and Licence in question was delivered by him in her office, and she sent to appellant, who in turn sent her a draft for Rs. 40/- lakhs drawn by Industrial Bank through Rajesh Kumar Chaganlal Angadia in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inite. Her defence shows that she was satisfied with the Nationalised Bank's certificate as to its authenticity. The above licence was accepted by the department to clear 1st three consignments without any doubt. Even for 4th consignment, what was the nature of doubt that arose to suspect the genuineness of licence is not made clear even in the Impugned order. So under these circumstances, the Impugned order cannot be upheld against the appellant. The contention of the appellant in that regard is accepted. She is entitled to succeed in her appeal. 22.Now coming to the appeals of Mrs. Vidya Mahadik, Sanjay Rai and Suresh Chopra, Show cause notice dated 2-2-1998 in paras 22 to 24 has alleged that M/s. H. Kumar Gems, its Proprietor Hitendra Kumar Gadecha, Ms. Sunita Goel, Appellant and Shrenik Mehta, and Prabhuram Purohit of Bombay, Rajendra Shah of Ahmedabad by their act of omission and commission have violated various provisions of Customs Act Export - Import Policy, 1997-2002 read with licensing notes to ITC (HSN), classification of Import items, 1997-2002, and Foreign Trade Development and Regulation Act, 1992. 120 Silver bars are sought to be cleared vide B/E No. 4019/97, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licences and are delivered to Purchaser along with Transfer documents. Sanjay Rai of Delhi, was desirous of selling the licence in question, which was in his possession, and so he contacted Vidya Mahadik. He had obtained that Licence from one Ramesh Chandra of Delhi, which was originally issued to M/s. Bajaj Auto Ltd., Poona for value of Rs. 13.50 crores. Ms. Sunita Goel was also engaged in similar activity, and she was in a position to sell the said licence and so she was handed over that licence through Mrs. Vidya Mahadik who had informed her to obtain a demand draft of Rs. 40/- lakhs as a part consideration of the said licence. Accordingly she had obtained a draft drawn in favour of M/s. Kohinoor Enterprises, a firm engaged in business of bill discounting, as desired by Sanjay Rai. Suresh Chopra was its Proprietor. Sanjay Rai had informed over phone to Mrs. Vidya Mahadik to give the draft to the person, approaching her, the same was deposited with Bankers M/s. Kohinoor Enterprises and in turn cash of Rs. 38/- lakhs was given by Suresh Chopra, deducting his commission of Rs. 2 lakhs. It was so arranged as Sanjay Rai had demanded cash amount from Mrs. Vidya Mahadik. Rs. 10 lakhs w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (35) E.L.T. 388. 24.Sanjay Rai in his reply to Show Cause notice dated 2-2-1998 through his Counsel has stated that he is falsely implicated on the basis of distorted and misconceived facts. He is nowhere concerned or connected with the import of silver or else neither he has imported it. CBI is already seized of this case and investigation is going as per the law of the land. Customs officer cannot proceed against the appellant. Offence of forgery to prepare fake licence is not established in this case. No expert opinion with regard to licence in question is put forth to justify that it is fictitious or forged one. Department is not able to prove it as a forged or fabricated. No payment with regard to this licence is received by him. In the absence of genuine material on record, appellant cannot be held responsible for the allegation in show cause notice. No Penal action is called for. 25.Suresh Chopra - appellant in response to the show cause notice dated 2-2-1998 has stated in his reply of 27th March, 1998 that he has specifically denied the charges levelled in the composite notice against him and other noticees of procuring forged SIL and abetting the conspiracy in acquiring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amesh of Delhi, and sold to Shrenik Mehta since at 4% of licence value, and gave 3% to Ramesh. Amounts were received in cash. Last SIL was in M/s. Bajaj Auto Ltd.'s name, Pune for Rs. 13.50 crores, which was also procured from Ramesh and sold it to Mrs. Vidya Mahadik, as Shrenik Mehta was not available in Bombay. He had not received any money from her towards this licence either by draft or by cash. Earlier in two occasions he had received Rs. 5/- lakhs each through Suresh Chopra, and around Rs. 40/- lakhs through Angadia Bipinkumar Babulal & Co. of Delhi. He does not know the address of Ramesh from whom the licence on question was received. Statement of Suresh Chopra states that he was dealing with cheque/draft discounting business since long, and is known to Mrs. Vidya Mahadik for a long period. He used to visit her in her office, and introduced him to Shrenik Mehta. She also told him he would get good business of cheque/draft discounting and he should open two accounts in Bank of America, one in Mangalam Enterprises name and in any other name. Then he opened one account in the name of M/s. Mangalam Enterprises owned by him as Proprietor and another in the name of M/s. Kohinoor E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Export, Handbook of Procedures are more relevant. Suresh Chopra, in spite of summons, though represented by Counsel, failed to appear for cross examination without any reason. In the appeal also no submissions on the appeal memorandum by him or his Counsel. This goes against him in the seriousness with which appeal was filed and show cause notice was replied. From the reply to notice by all the noticees and facts in appeal memorandum and statements under Section 108 of Customs Act, and the documents available on record, submission made in the arguments, and the Impugned order, one fact is clear that appellant in all their acts have acted in chain of events, pertaining SIL under which silver and gold was imported, and apart from this case, there was previous transaction of same nature earlier, which is more evident from the appeal of Mrs. Vidya Mahadik, Suresh Chopra, Sanjay Rai, Sunita Goel and H. Kumar Gems. As per the facts, Licence in question was procured by Sanjay Rai from Ramesh Chandra and forwarded it to Smt. Vidya Mahadik, who in return sent to Ms. Sunita Goel, who sent to M/s. H. Kumar Gems, who utilized it to clear consignments of silver and Gold under 3 bills of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istible conclusion is that the licence in question valued Rs. 13.50 crores was not a proper document and all the concerned were aware of it. It is quite unreasonable to believe that such a valuable document is delivered for such a small sum. Trade practice set up is not supported by any Independent Material. The instances pointed out refers to the documents of appellant M/s. H. Kumar Gems with other brokers. The said trade practice, if accepted shows undervaluation of highest order. So the impugned order has exhaustively dealt with the submission made by the parties, and has come to just and proper conclusion. The action of the appellants Ms. Vidya Mahadik, Suresh Chopra and Sanjay Rai in procuring the SIL and delivering it to M/s. H. Kumar Gems, enabled the import clearance. This is clear case of abatement, with common intention. The circumstances narrated in the Impugned order clearly substantiates it. The grounds urged in the appeal are purely technical in nature. Only probability is to be seen on the facts and circumstances as available on records, and as discussed in the Impugned order, probabalises the case against these three appellants. Exchange of Rs. 40/- lakhs from H. Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enough to establish the charges levelled in the show cause notice. The period is prior to the period in this case. So it has no bearing on this case. This decision in this case rests on a material produced and substantiated to probabalise the case. 30.In C-1237-R/99 - Mumbai - Department has filed the application under Section 129(D)(4) of Customs Act, against the Impugned order, on review by the board, requiring the Tribunal to answer the question (1) Impugned order is not demanding special Customs duty at appropriate rate under Section 68 of Finance Act, 1996 (33A-1996) and not imposing Mandatory penalty equivalent to duty evaded, under Section 114A of Customs Act is legally correct and proper? (2) Whether corrigendum dated 12-8-1999 to impugned order is correct, legal and proper? (3) Whether Tribunal should modify the order confirming duty of Rs. 3,84,40,582.00 and imposing an equivalent penalty or pass any other order deemed fit? Grounds on which questions were referred are that corrigendum dated 12-8-1999 of Impugned order that - "Due to inadvertent error in computing applicable rate of duty, amount shown in the order of Rs. 31,62,05,378/- in paragraph 47(i) and (ii) may be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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