TaxTMI 
TaxTMI 
2014 (10) TMI 458
X X X X Extracts X X X X
X X X X Extracts X X X X
....ainst each under section 114 of Customs Act, 1962 came in appeal before Tribunal: Sl. No Appeal No. Party Penalty imposed Remark 1. C/481/2007 Surinder Malik 15.00 Lacs 2. C/492/2007 Subodh Kumar Pandey 15.00 Lacs 3. C/491/2007 Shri Vijay Gupta, 15.00 Lacs 4. C/493/2007 Shri Narinder Singh, 50,000/- 5. C/551/2007 Poonam Chand Gupta, 15.00 Lacs 6. C/617/2007 Lalit Kumar Katoch, 50,000/- 7. C/483/2007 Shri Suraj Prakash, Inspector 1.00 Lacs 3. None appeared for surinder Mallik, Vijay Gupta, Subodh Kumar Pandey, Narinder Singh and Lalit Kumar Katoch. One Shri Dalip Singh, Advocate a proxy Counsel sought adjournment without mentioning under whose instruction he sought such adjournment and for what reason. Such prayer was not allowed considering the appeals were of seven years old. 4. Ld. Counsel Shri S.K. Pahwa arguing the appeal No.C/483/2007 on behalf of Shri Suraj Prakash, an officer of Customs submitted that he was an innocent Officer and not involved in the export made by Shri.Surinder Malik, Shri Vijay Kumar Gupta and Poonam Chand Gupta. Although there was mis-declarati....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was also not allowed for his defence. When cross examination is denied, the appellant is entitled to the ratio laid down in the case of Basudev Garg vs. CC reported in 2013 (294) E.L.T. 353 (Del.) and also the judgement of Hon'ble High Court of Allahabad in the case of CCE, Meerut-I vs. Parmarth Iron Pvt. Ltd. Reported in 2010 (26) E.L.T. 514 (All.). 5.5 It was further argued by ld. Counsel that to levy penalty under section 114, appellants contumacious conduct is to be established. Antecedent of the appellant does not speak his conscious involvement in attempt to export nor he made undue gain. When there was no such gain made by him, he cannot be asked to pay penalty of Rs. 15.00 Lakhs unjustly. 5.6 It was also submission of ld. Counsel that adjudication was based on interim reply without giving any chance to file final reply to the show cause notice. Reading para 108 of the adjudication order, she submits that Poonam Chand Gupta had challenged the show cause notice on various counts as has been recorded in the adjudication order. But ld. Adjudicating authority did not address the challenge threadbare. He came to a summary conclusion and levied penalty on the appellant. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tious concern and Mr. Poonam Chand Gupta possessed blank letter heads of M/s.H.M. Impex. 10 pages of such letterhead were recovered from the premises situated at B.G. 5/8, Paschim Vihar, New Delhi while search was conducted to that premises on 19.12.2003. Such papers were used to operate bank accounts of M/s.H.M. Impex also and to make application to JDGFT to get IEC Code in the name of fictitious concern viz., M/s.H.M. Impex. This clearly established involvement of Poonam Chand Gupta to open bank account in the name of H.M. Impex which he admitted in his statement recorded during search on 19.12.2003. Shri Gupta claimed that the blank letter heads were kept by Shri Subodh Kumar Pandey. 6.4. Fraudulent claim of draw back was admitted by Shri Lalit Kumar Katoch and name of H.M. Impex surfaced in his statement. That was found to be fictitious concern and the bank account No.4980 opened in Punjab National Bank was an account operated by the smuggling racket. Out of the draw-back amount of Rs. 40,39,440/- taken in the name of H.M. Impex from ICD Parparganj, Delhi an amount of Rs. 40,31,000/- was transferred from this account and the money was drawn by various mischievous members of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....962 for misdeclaration of description, quantity, weight and value. (d) Whether penalty is liable to be imposed on the notices under the provisions of Section 114 of the Customs Act, 1962. 7.5 The shipping bill No.1287830 dated 17.06.2003 showed the description of the goods as cotton/Rayon powerloom readymade garment, high fashion ladies dress declaring the value at Rs. 1,62,34,087/- FOB with the claim of duty drawback of Rs. 17,04,579/-. The P.M.V. of such goods declared was Rs. 595/- per piece of high fashion ladies dress and Rs. 600/- per piece for the printed ladies dress arriving at aggregate value at Rs. 1,70,25,000/-. Those were found to be rags like quality garments, which were of uneven and irregular size, of a very inferring quality, having uneven stitching. Such goods were seized. 7.6 The shipping bill No.1288039 dated 17.06.2003 was in respect of attempted export of 'Rings (100 MM 80 MM, 60 MM, 40MM) - Textile Machinary parts' and 'Gear Cutting Tools made of Cobalt Bearing High Speed Steel' involving drawback claim of Rs. 16,95,274/-. Both the goods were found to be overvalued and attempted to be exported. So also the gear cutting tools declared as made of cobal....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... name of M/s H.M. Impex was found to exist at that address. The owner of the premises of WZ156, Madipur, New Delhi testified that he had not given his premises to M/s H.M. Impex and did not know any person by the name of Shri Rajiv Kumar (shown as proprietor of M/s H.M. Impex). ii) When the export goods under the two disputed shipping bills were examined, Sh. Vijay Kumar Gupta had appeared alongwith Sh. Surinder Malik, Shri Poonam Chand Gupta, Shri Subodh Kumar Pandey and Shri Lalit Kumar Katoch, representative of CHA. iii) That all the documents viz visiting card of Shri Lalit Katoch (representative of CHA) invoice copies, both handwritten and typed, packing lists, blank letter heads of M/s. H.M. Impex, cash deposit counterfoil of PNB of that concern, Certificate of IEC code, PAN card issued by Income Tax Authorities in the name of Shri Rajiv Kumar, (so called proprietor of M/s H.M. Impex), letter from Punjab National Bank to M/s H.M. Impex, form for applying for visitor pass, letter written by Surinder Kumar on letter head of M/s.H.M. Impex, purchase order issued by M/s Indo Magic Sdn Bhd, Malaysia to M/s H.M. Impex, originals of two CRN slips issued by the Container Corpor....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... several times on phone and made enquiries; that on 18.06.2003, Sh. Surinder Malik had also enquired from him on phone about the shipping bills of M/s H.M. Impex; that in connection with his business, he met Shri P.C. Gupta and Shri Vijay Gupta at C-70, Shivaji Park, PunjabiBagh (office address of Shri Poonam Chand Gupta); that whenever he called to their telephone at any of the above two offices, either Shri P.C.Gupta or Shri Vijay Gupta used to be available; that for him both were one and the same and both were owners of the company; that they had asked them that certain goods i.e. 'garments' and 'textile machinery parts' were to be exported to Malaysia; that they assured him that the garments being exported by them were of good quality and their rates were absolutely fair and he should file the papers. vii) Packing of rags for exports was done at the premises of M/s Indo Exim owned by Sh. Vijay Gupta. viii) Sh. Jai Prakash, proprietor of M/s Jyoti Enterprises in his voluntary statement recorded under Section 108 of the Customs Act, 1962 had stated that he was a dealer of junk garments; that he sold surplus rejected goods to Sh. Vijay Gupta of the value of R....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estigation to find truth thereof as appearing in para 7.10 of his order. That authority found that the incriminating materials gathered by investigation proved story of Revenue discarding entire defence ill founded. 9. The Customs Officer Shri Suraj Prakash was named by Shri Vijay Kumar Gupta in his statement dated 22.07.2003 while he was in judicial custody. He being involved in the Customs fraud, he was before the Court of ACMM. Shri Suraj Prakash allotted both the impugned shipping bills in his name for examination. He manipulated the data in the computer through one Shri Narender Singh. That manipulation was done in the computer terminal of Shri D.V. Sidhmukh since that was open. Mischievous act of Suraj Prakash was corroborated by statement of Narender Singh and Sanjay Kumar Pandey as well as Deeraj Kumar, 'H' card holder of M/s.Kunal Travels, the CHA. As per the work allocation order issued by Assistant Commissioner, Shri Suraj Prakash was posted at the Customs Station on 18.06.2003 under the supervision of Shri Ravinder Mohan. However, the shipping bills of M/s. H.M. Impex were taken by him to Shri D.V. Sidhmukh, Superintendent without the same being presented to Shri Rav....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... fraud committed against Revenue. In such circumstances, appellant's plea for cross-examination is a mere dilatory tactics without justifying reason therefore. Such practice was to further cause prejudice to Revenue. 10.4 Ld. adjudicating authority had allowed adequate opportunity to the appellant through the Show Cause Notice granting opportunity of recourse to natural justice. When the submissions made by the appellant did not receive support of law due to cogent and credible evidence against appellants, ld. adjudicating authority rightly rejected the plea of cross-examination and proceeded to adjudicate against that appellant. Cross-examination although is a valuable right, that cannot be abused without justifiable reason. That is deniable when the court comes to the conclusion that such prayer is to follow dilatory tactics and cause prejudice to the other side. In existence of materials speaking truth against the appellant which remained uncontroverted that debarred him to seek cross-examination. If the evidence gathered and used against the appellant is not impeachable, in absence of cogent evidence to the contrary, plea for cross-examination is liable to be discarded. But ....