9911796707
TMI Blog2002 (1) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... . has not manufactured any goods at all during the relevant period and therefore could not supply any leather products of the respondent. The investigation began as a result of information that the respondent was selling the goods imported by it without payment of duty in the market, contrary to law. Shailesh Jobalia, a broker in dyes and chemicals, in his statement said that it sold the chemicals imported by the respondent, indicating how much money he made out. Notice was therefore issued to the respondent, Feroz Harjiyani, its Director, and others proposing recovery of duty of the goods sold in the market and imposition of penalty on it. After considering the replies and submissions at the hearing, the Commissioner passed orders in the matter. The Commissioner noted that "supporting manufacturers M/s. WTIPL, Kanpur, shown as a supporting manufacturer was not functional at the given address since 1985. Therefore the goods could not have been manufactured at their declared premises." He however noted that the same evidence which impelled him to come to this conclusion indicated that whether goods have been supplied to the respondent, which exported them. He said, "There is no char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on to say "this denial has to be weighed against the plea on behalf of MEPL being made before me that there are entries in the diary recovered from MEPL and relied upon in the show cause notice about large sums of payments being made to Alam and/or delivery of the material (indigenous leather of imported goods). If the diary is being relied upon to establish certain facts, the other facts in the diary can be relied upon to establish that there was a delivery of money, the material (indigenous and imported) being effected to and by Alam." 3.We are of the view that the Commissioner has made an inference from these statements which is unjustified. The diary may perhaps have shown supply of material to Alam. That by itself could not establish that the material imported by the respondent company had been delivered, particularly, since Alam has denied having received it. If in fact he has received it, and utilised it, in the manufacture of export goods elsewhere than in the factory of WTIPL (that having been closed at the relevant time) he would not have said so. Such a fact could also be established from the records of these firms which, the Commissioner says, manufactured the goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot voluntary and that this is made clear in the detailed reply filed on 30-5-1996. Alam's statement was recorded some time in October, 1993. Any retraction made, after three years, does not carry any weight and the claim has therefore to be dismissed. 8.It is contended that the order of the Board directing the Commissioner to appeal to the Tribunal has been made beyond the period of one year provided in law for this purpose. The appeal therefore is invalid. Hence the appeal failed. The decision of the Tribunal in CCE v. Fujitus India Telecom Ltd. (Appeal C/714-V/99) [2001 (138) E.L.T. 878 (Tri.)] is relied upon in support. 9.The Commissioner's order was made on 11-7-1997. The order of the Board authorising review is dated 22-6-1998. In his appeal, the Commissioner says that this order was communicated to him on 4-8-1990. The department's appeal has been filed on 21-9-1998. The contention is that the order should have been communicated within a period of one year from the date of the Commissioner's order. 10.Sub-section (1) of Section 129D reads as follows :- The Board may, of its own"(1) motion, call for and examine the record of any proceeding in which a Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t January, 2001 for it not to suffer from limitation. Any order issued the day after would be barred by limitation. Now, it cannot be denied, even with the utmost speed, a day or two may be needed to issue the order. Therefore, the effect of applying this decision would be that period of one year provided in that Section is reduced. We do not find that it is permissible to little down the statutory provision in this manner. Further, the Tribunal's decision itself says that for fulfilling the condition contained in sub-section (1) & (2) "a communication must be made to the officer who is to make an application to a Commissioner (Appeals). Now, communication is only made when it is received by the intended receiver. If it is not, there has been no communication. Suppose the envelope containing the Board's direction is lost in the post and never received by the Commissioner, can it be said because it has been given to the Postal authorities, the communication is complete? The answer, obviously, is in the negative. 14.The words used in the section are "direct" in sub-section (1) & (2), "made" in sub-section (3) and "communication" in sub-section (4). From a leading of this provision, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin three months from the date of receipt of such communication. 17.Penalty was also proposed on the importer, its director, manager, the two brokers, Jobalia and Parekh, and Kukreja, the purported buyer of these goods. So far as the company and its director and manager are concerned, we are of the view that they are liable to penalty. They have clearly, in contravention of the provisions of the notification, sold the goods and enriched themselves by originating a very large amount of money. The only possible extenuating factor is that they had actually made the exports and that if they had imported the goods subsequent to the export, they would have been entitled to the sale of the goods. The action in selling the goods would not have been contrary to law. In these circumstances, we are of the view that penalty of Rs. 25 lakhs on the company, Rs. 15 lakhs on H.R. Bhatt and Rs. 5 lakhs on Firoz Hajiyani under Section 112 of the Act will suffice. 18.So far as the other three persons are concerned, the Commissioner has found that there is no evidence of prior knowledge on the part of the brokers and assisting in the sale and purchase of goods. This was the common contention rais ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
