2007 (11) TMI 132 - AT - Customs

Tribunal overturns order citing lack of evidence and procedural flaws, stresses importance of fairness

The Tribunal set aside the impugned order due to insufficient evidence supporting the FOB price determination and penalty imposition, emphasizing the lack ... FOB price of Rs. 44.82 per piece remained uncontroverted - different lots were purchased from different concerns was not controverted – investigation made after shipment and enquiry was behind back of Appellant – Two SCN issued for no reason explained - violation of principles of natural justice – De novo Adjudication Order imposing penalty of 8 lac not sustainable as it was not the subject matter of SCN – impugned order is beyond the direction made in remand order passed so same is set aside Issues:1. Determination of FOB price and imposition of penalty.2. Consideration of corrigendum to the show cause notice.3. Adjudication process following remand by Tribunal.4. Imposition of penalty beyond the scope of show cause notice.Analysis:Issue 1: Determination of FOB price and imposition of penaltyThe Appellant challenged the determination of the FOB price at Rs. 44.82 per piece and the imposition of a penalty of Rs. 8.00 lakh. The Appellant argued that the evidence on record was insufficient to support the determined FOB price, emphasizing the lack of basic evidence and the absence of intention for subterfuge. The Appellant contended that the procurement price of Rs. 48.83 per piece, which remained uncontested by the Revenue, should have been the basis for determining the exportable price. The Tribunal, in its remand order, highlighted the need for a proper consideration of the evidence provided by the Appellant and directed the Commissioner to pass a speaking order after examining all relevant evidence. The Tribunal ultimately set aside the impugned order, emphasizing the lack of proper appreciation of evidence and principles of natural justice.Issue 2: Consideration of corrigendum to the show cause noticeThe Appellant raised concerns regarding the consideration of a corrigendum to the show cause notice issued on 19-5-03. The De Novo Adjudication Order did not clarify whether the corrigendum was taken into account during the adjudication process. This raised questions about procedural fairness and the need for a comprehensive review of all relevant notices and submissions before reaching a decision.Issue 3: Adjudication process following remand by TribunalThe Tribunal noted various inconsistencies and procedural irregularities in the adjudication process following the remand by the Tribunal in its Order dated 15-7-04. The Tribunal highlighted discrepancies such as uncontroverted FOB price, lack of evidence regarding the purchased lots, failure to confront reports for rebuttal, and investigations conducted post-shipment without the Appellant's involvement. These irregularities led the Tribunal to set aside the De Novo Adjudication Order, emphasizing violations of natural justice and evidentiary rules.Issue 4: Imposition of penalty beyond the scope of show cause noticeThe Tribunal addressed the imposition of a penalty of Rs. 8.00 lakh, which was not contemplated in the original order or the show cause notice. The Tribunal found that the substantial penalty imposed in the De Novo Adjudication Order exceeded the scope of the initial proceedings and violated principles of natural justice. The Tribunal ruled that no penalty beyond what was specified in the show cause notice could be imposed, emphasizing the need for procedural fairness and adherence to the directions provided in the remand order.In conclusion, the Tribunal set aside the impugned order, emphasizing the importance of proper consideration of evidence, adherence to procedural fairness, and limitations on penalty imposition beyond the scope of the original proceedings.