TaxTMI 
TaxTMI 
2011 (11) TMI 295
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and C/1413/10 are filed by the department against the order of the Commissioner (Appeals) Nos. 23, 24 & 25/2010 (H-II) Cus dated 31.3.2010 with respondents M/s Tallaja Impex, Shri K. Sai Prasad, Partner of M/s Tallaja Impex and one Shri D. Lakshminarayana. These orders have been passed on appeals of these three respondents against the order of the OriginAal authority No. 71/2009-Cus. dated 3.12.2009. 1.2 The appeal Nos. C/1158/10 and C/1159/10 are against the order of the Commissioner (Appeals) Nos. 7 & 8/2010 (H-II) Cus dated 25.2.2010 with M/s ARK Logistics Services (P) Ltd. and Shri B. Nageswara Rao as respondents. The impugned order has been passed by the Commissioner (Appeals) against on appeals by the respondents against the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rayana is the proprietor of M/s Selection Enterprises). In fact, it was alleged that IE code was taken in the name of a non-existing person using manipulated documents (There have been separate proceedings in respect of imports in the names of M/s Selection Enterprises and M/s Om Sai Enterprises). A show-cause notice dated 25.6.2008 was issued proposing confiscation of 600 gas cylinders (300 cylinders of R-22 gas and 300 cylinders of R-143A gas) imported by M/s Tallaja Impex and proposing imposition of penalties on all the respondents. 3.2 The original authority passed the following order :- "(i) I absolutely confiscate the goods viz., 300 cylinders containing R22 gas (13.6 Kgs each) with a value of Rs. 3,56,476/- (Rupees three ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... respect of all the respondents and allowed their appeals and hence, the department is in appeals before the Tribunal. 4.1 The learned DR appearing for the department (in appeal Nos. C/1411/10, C/1412/10 & C/1413/10) reiterating the grounds of appeals submits that Shri D. Lakshminarayana has clearly admitted having imported the impugned goods using the name of three firms including M/s Tallaja Impex. He has specifically admitted having imported 600 cylinders in three containers in the imports made in the name of M/s Tallaja Impex. However, he could not specify under which Bills of Entry those containers were cleared. The Commissioner (Appeals) has set aside the order without going to the merits of the case and erroneously hel....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... D. Lakshminarayana might have played a role in their imports. He also submits that the order of the original authority suffers from violation of principles of natural justice inasmuch as the prayer of cross examination of S/Sri Lakshminarayana, S. Nagalinga Raju and Nageswara Rao as sought by the main importer, M/s Tallaja Impex was denied. The finding of the original authority, that M/s Tallaja Impex was seeking cross examination for the purpose of dragging of the proceedings was factually incorrect. Relying on statement of the said co-accused persons without cross examination is not permissible. In this regard, he relies on decision of the Hon'ble High Court of Gujarat in the case of CCE Ahmedabad Vs. Chhajusingh S. Kanwal [201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eported in 2010 (261) E.L.T. 648 (Tri.-Bang.)]. 5.3.3 In view of the above, serious charge of abetment of smuggling warranting penalty, as held by the original authority, is not sustainable. 6.1 I have carefully considered the submissions from both sides and perused the records. The show-cause notice proposed confiscation of 600 cylinders imported in the name of M/s Tallaja Impex. There is no mention of any seizure of consignments imported in the name of M/s Tallaja Impex. The original authority not only ordered absolute confiscation of 600 cylinders but also ordered to dispose of the seized cylinders in terms of Board's letter vide F. No. 711/79/2000-Cus (AS) dated 26th December 2001. The verificatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ating the same and the disposal of non-available goods by the department do not arise. However, Shri Lakshminarayana and M/s Tallaja Impex, admittedly, have knowingly involved themselves in importing 600 gas cylinders in the past. It is also admitted that they did not have the requisite licence for importing the consignments. Therefore, penalties on them are warranted. 6.2 As regards the role of M/s ARK Logistics Services (P) Ltd., neither the show-cause notice nor the order of the original authority indicate any specific complicity in the import of prohibited items in the name of M/s Tallaja Impex. Further, as pointed out by the learned Advocate for M/s ARK Logistics Services (P) Ltd., the proceedings under the CHA initiated by th....