TaxTMI 
TaxTMI 
2014 (6) TMI 379
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....el No. 290 HC make-1995. The importer had also submitted a Chartered Engineer's certificate issued by one Shri D.M. Pradhan of Mumbai and as per the said certificate, the date of inspection was 1-1-2004 and both the cranes have been subjected to regular maintenance and they were furbished with new moving parts and there was no major repair work done and both were in good condition. Examination of the goods done on 15-1-2004 by the Shed Appraiser in presence of SIIB officers and the Assistant Commissioner revealed that out of 16 containers containing the goods, only two containers were grounded and the said two containers contained Operator's cabin and consisted of a cabin resting on iron/steel frame. There were operator chairs inside the cabin along with the various controls like gears and electric circuits essential for running the cranes. There was a new plate showing the model number, work number and year of manufacture as 1995. In one of the cabins, the original plate had been removed and in its place, a new plate had been fixed by the means of simple rivets. The impact of the original plate was visible and the same did not match with the dimension of the new plate, thus making....
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.... they got the contract in October, 2002. In April, 2003, the Director of M/s. Liebherr Export AG, Mr. Reim approached him to sell the tower cranes and the deals were finalized in September and the cranes were dispatched from Germany in December. When questioned as to why they did not obtain a Chartered Engineer's certificate from the supplier/Germany, he stated that both the appellant and the supplier had missed the requirement of producing Chartered Engineer's certificate from the supplier. When questioned about the certificate given by Shri D.M. Pradhan, who had issued the certificate without inspection, he stated that his CHA whom they had engaged, had informed him of the completion of inspection. When he was asked regarding the change of the plates and about the significance of the coded markings like 11/87, 1/90, 1/92, etc. found on the centre line of the plates, he stated that he would check up with the supplier about the meaning of these markings. When questioned about the submission of a bogus Chartered Engineer's certificate, he admitted that it was a mistake on their part to clear the goods based on such a certificate. 2.4 Shri Mani Shankar Singh was again called ....
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.... did not have any such Engineer. But, when confronted with the Chartered Engineer's certificate issued by his company in the case of M/s. Jai Prakash Industries, he stated that his company called these certificates as Manufacturer's certificate. 2.6 In view of the doubt about the year of manufacture of the goods under importation, the department formed an Expert Panel consisting of 4 Appraising Officers including a Machinery Expert, the Dy. Commissioner of Customs, Docks, Plant Manager of Larsen & Toubro, Independent Engineer, Assistant Foreman of Larsen & Toubro, Shri Rakesh Handa, the CHA and Shri R.R. Dhar, appellant company's representative. The goods were examined on 27-2-2004 by the Expert Panel. In the report given by the Expert Panel, it was opined that the prime movers appeared to be more than 10 years old as there was excessive wear and tear and rust noticed on the goods and the trolley winch assembly was also found to be of old type (more than 10 years old). Pivot Pinion was worn out and oil leakaged was noticed from the gear box. Telescopic cage sliding rollers were also worn out and jammed. A brand new plate was fixed on cranes' cabin and it was attached in the....
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....28 along with interest thereon under Section 28AB. A personal penalty of Rs. 10 lakhs each was imposed on the appellant-firm M/s. Patel Engineering Ltd. and M/s. Liebherr Export AG India office under Section 112(a). Penalty of Rs. 5 lakhs each was imposed on Shri B.K. Chakraborty, Vice-President of the appellant-firm, Shri Pulok Gupta, Manager of the supplier's India Office and Shri D.M. Pradhan, Chartered Engineer. A penalty of Rs. 3 lakhs was imposed on Shri Rakesh Handa, the proprietor of CHA firm. A penalty of Rs. 1 lakh was imposed on Shri Mani Shankar Singh Asst. Chief Engineer of the appellant-firm. It is against this order, the appellants are before us. 3. The learned Counsel for the appellant M/s. Patel Engineering Ltd. made the following submissions :- (i) The appellant had sought cross-examination of certain members of Expert Panel, which was denied. The cross-examination of the expert panel was very important inasmuch as Shri R.R. Dhar, the company representative, who was part of the panel raised objection to the findings given by the said panel. Shri Dhar, being a Graduate in Physics and General Manager of the company, had the r....
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.... Guru Electronics Singapore Pvt. Ltd. - 2009 (240) E.L.T. 56 (T) (c) Ankit Gopal Agarwal - 2009 (234) E.L.T. 646 (T) (d) Advance Exports - 2007 (218) E.L.T. 39 (T) (e) Relax Safety Industries - 2002 (144) E.L.T. 652 (T) (f) C.K. Kunhammed - 1992 (62) E.L.T. 146 (T) 5. The learned Addl. Commissioner (AR) appearing for the Revenue, on the other hand, submits that on examination of the goods by Shed Appraiser under the supervision of Assistant Commissioner (Docks) and Assistant Commissioner, SIIB, it was found that name plates affixed on the goods have been tampered with and replaced by a new plate. Other plates found welded on the machine's main frame indicated the year of manufacture ranging between 1988 and 1992. The drawings for electric circuit found in the cabin also indicated the years as 1988 and 1991 and on few other parts of the machine, the year was found to be ranging from 1988 to 1992. 5.1 The inspection certificated produced by the appellant from Shri D.M. Pradhan, Chartered Engineer was found to be bogus inasmuch as the same has been given without ....
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.... import of cranes which were not eligible for concessional rate of duty under the EPCG scheme. Shri Mani Shankar Singh in his statement dated 13-2-2004 deposed that the machines were inspected in Germany whereas Shri Gerhard Class, representative of the supplier in India had stated that machines were inspected in Belgium. Thus, Shri Singh tried to mislead the department and aided and abetted the import of the impugned goods in violation of the EPCG scheme and therefore, penalty is imposable under Section 112(a) of the Act. Shri D.M. Pradhan, who issued the Chartered Engineer's certificate without inspection of the machine, is no more alive. Therefore, the proceedings against him abated. Shri Pulok Gupta also gave misleading statements. Therefore, Shri Pulok Gupta is also liable to penalty. 5.5 Regarding denial of cross-examination, there is no vested right of cross-examination and the expert panel has been constituted with consent of the importers and the CHA and the company's representative were also part of the panel. He relied on the decision of Allahabad High Court in the case of Shyam Lal Biri Merchant v. UOI reported in 1993 (68) E.L.T. 548 (All.) and the decision of ....
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....i R.R. Dhar was part of the expert panel, which examined the goods and submitted the report. Shri R.R. Dhar had exressed his reservations on the observation and conclusions drawn by the expert panel and had submitted detailed comments vide letter dated 8-3-2004. Thus, sufficient opportunity has been given to the appellant to make submissions against the findings of the expert panel. Therefore, it cannot be said that denial of cross-examination of the members of the expert panel has caused prejudice to the appellant in making their defence. Thus the facts involved in the present case are different and distinguishable from those in the Kellogg India Pvt. Ltd.'s case (supra) and, therefore, the ratio of the said decision is not applicable. 6.3 In the case of Kanungo & Co. v. Commissioner of Customs, Calcutta - 1983 (13) E.L.T. 1486 (S.C.), the Hon'ble Apex Court held that the principles of natural justice do not require that in every matter the person who has given information should be examined in the presence of the appellant or allowed to be cross-examined by the person concerned in respect of the statements made before the customs authorities. Similarly in the case of Shya....
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....over, lifting cage is always considered as an accessory." Another observation of the expert panel is that the components like motor, gear box, bear the year of make 1988, 1990, etc. From this it may also be concluded that the cranes are more than 10 years old. The counter to the same by Shri Dhar is that it is nowhere written on the Motor's Gear Boxes the wording 'Year of Make'. 6.5 Now, let us examine whether the counter given by Shri Dhar is sustainable and whether there is any other corroborative evidence sustaining the expert panel's observations. There is a correspondence dated 9-3-2004 from the supplier M/s. Liebherr Exports AG, Switzerland available in the records. In the said letter, it has been stated as follows :- "Both cranes were sourced in Germany and were never been in use in Belgium. Before handover of the cranes to M/s. Liebherr Exports AG, the cranes were moved to a yard in Belgium for maintenance works. This job included the following :- (a) Refurbishing of the tower cranes and replacing damaged components. Nevertheless we are not in a position to confirm whether the replaced components are older or younger than 10 years. (....
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....0 years old. Thus the evidences available on record, clearly establish that case of the Revenue that the goods under importation are not of 1995 make as claimed by the appellant, but they are of older vintage. 6.6 There is one more reason to come to this conclusion. As per Finance Ministry's Circular 493/124/86-Cus., dated 19-11-1987, as per the Import policy, importers of second hand machinery are required to produce a certificate from a professional independent chartered engineer or any equivalent institute in the country of supply of the machinery. This certificate, inter alia, indicates the currency, CIF value of the machinery, if purchased now, year of manufacture of the machinery and the sale price of the suppliers besides present conditions of the machinery and nature of reconditioning or repairs, if any, carried out." The appellant had not obtained such a Chartered Engineer's certificate as required in respect of second hand machinery. Once they realized that they did not have the certificate, they sought to obtain a bogus certificate from a Chartered Engineer, who without examination, gave a certificate and the same was submitted along with import documents to show....
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....D. Bhoormull [1983 (13) E.L.T. 1546 (S.C.)], the Hon'ble Apex Court held as follows :- "These fundamental principles, shorn of technicalities, we have discussed earlier, apply only in a broad and pragmatic way to proceedings under Section 167(8) of the Act. The broad effect of the application of the basic principle underlying Section 106 of Evidence Act to cases under Section 167(8) is that the department would be deemed to have discharged its burden if it adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of a fact sought to be proved." In the present case, from the evidences available on record both circumstantial and direct, the department has discharged its burden that the machinery imported were more than 10 years old, by proving that the Chartered Engineer's certificate produced by the appellant was bogus and by way of positive evidence regarding the age of the machinery by way of examination reports by the Shed Appraiser and the Chartered Engineer Sri. Pradhan and the report of the Expert Panel. 6.9 In view of the above position, the order of the adjudicating authority deny....