TaxTMI 
TaxTMI 
2014 (12) TMI 767
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.... whose value on FOB basis would be Rs. 16,07,44,035/- whereas in the impugned order, the correct value after rejecting the transaction value has been arrived at Rs. 2,97,93,000/-. Shri Imtiaz Ahmed, appellant in this case, is said to be a party who arranged to receive the goods, transfer the money to India and also organised disposal of the excess amounts paid to undervalued fabrics to derive export incentives to which they were not eligible and also used the export process for 'hawala' transactions. 3. Learned counsel on behalf of the appellant submitted that in this case in respect of all the exports, the payment has been received and Bank realisation certificates have been produced; Shri Imtiaz Ahmed was residing abroad and therefore, no penalty could have been levied on him; except statement of the exporter, there is no other evidence connecting Shri Imtiaz Ahmed to the exports; there was no role played by the appellant in respect of the exported goods; the letter written by the appellant during the course of investigation was not considered; the goods had been cleared by Customs officers after examination and therefore, the same could not have been re-opened; appellant....
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....p; Payment for the exported fabrics has been received from firms/persons other than the goods were exported. 6. In these circumstances, we consider that the appellant should be put to terms for hearing the appeal. Accordingly, the appellant is directed to deposit an amount of Rs. 25 lakhs (Rupees Twenty five lakhs only) within eight weeks from the date of receipt of this order and report compliance on ... October 2013. Subject to compliance of the above requirement, there shall be waiver of pre-deposit and stay against recovery of balance dues during pendency of the appeal. (Pronounced in the open court on............) Sd/- B.S.V. Murthy) Member (Technical) 7. [Order per : Ashok Jindal, Member (J)]. - After having gone through the order of the learned Member (Technical), I am recording a separate order. 8. During the course of arguments the learned Counsel for the applicant argued the matter basically on three issues :- (1) that while passing the impugned order the adjudicating authority has not complied with the directions of Section 138B of the Customs Act which is paramaterial to Section 9(d) of the Centr....
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.... committed beyond India and in a foreign country which will not come within the mischief of the provisions of the Customs Act, 1962. I have given my anxious consideration to the plea of the learned D.R. for remitting the matter. Inasmuch as inherent want of jurisdiction and also non-applicability of the provisions of the Customs Act, 1962 go to the root of the matter, no purpose will be served by remanding this issue, as the legal position is well-settled and does not admit of any doubt or controversy. In this context I may usefully refer to Sections 3 and 4 of the Indian Penal Code where express provisions have been incorporated extending the applicability of the provisions of the IPC to any citizen of India beyond India and also the power of Indian Courts to try them for offence committed beyond India in the same manner as if such acts have been committed within India. I should like to note that similar provisions under the Customs Act, 1962 are conspicuous by their absence. Therefore, on this legal question I hold that penalty on appellant C.K. Kunhammed is not sustainable under law and the same is accordingly set aside and his appeal allowed." 12. Further, with regard t....
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....he very fact that the statement of such a person can be treated as relevant only when the specified ground is established, it is obvious that there has to be objective formation of opinion based on sufficient material on record to come to the conclusion that such a ground exists. Before forming such an opinion, the quasi judicial authority would confront the assessee as well, during the proceedings, which shall give the assessee a chance to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the said material, for forming the opinion. Only then, it would be possible for the affected party to challenge such a decision effectively. Therefore, the elements of giving opportunity and recording of reasons are inherent in the exercise of powers. The aggrieved party is not remediless. This order/opinion formed by the quasi judicial authority is subject to judicial review by the appellate authority. The aggrieved party can always challenge that in a particular case invocation of such a provision was not warranted. 30. Therefore, it cannot be said that the provision gives uncanalised or uncontrolled power upon the quasi judi....
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....as the applicant was not in India at the time of import not the resident of India and not imported the goods in India, has made out a case. 13. In these circumstances, on all the three grounds argued by the learned Counsel for the applicant, the applicant has made out a case for waiver of penalty in that event the order is not sustainable. Therefore, I am of the view that waiver of penalty be granted to the applicant during the pendency of the appeal. Sd/- (Ashok Jindal) Member (Judicial) DIFFERENCE OF OPINION 14. As there is a difference of opinion between the Members, following point is placed before the Hon'ble President for reference to the Third Member :- 1. Whether relying on the decision of J & K Cigarettes Ltd. (supra), in the case in hand the adjudicating authority has not formed opinion on the basis of the material on record. There is no supporting reasons to believe that the statement recorded during the course of investigation is correct or not? The provisions of Section 138B of the Customs Act, 1962 are violated or not by the adjudicating authority. 2. Whether the provis....
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....licant then matter should be decided by the Division Bench at the earliest. 18. After hearing both sides and on perusal of the records, I find that it is appropriate to reproduce Section 122A of the Customs Act, 1962, which is as under : "SECTION 122A. Adjudication procedure. - (1) The adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. (2) The adjudicating authority may, if sufficient cause is shown at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during the proceeding." 19. The findings of the adjudicating authority is reproduced as under : "26. Shri Manohar Jeerige, Advocate to Shri Imtiyas Ahmed vide his letter dated 13-10-2011 sought adjournment of the personal hearing as the counsel is out of station. Accordingly, final adjournment was granted and PH was fixed on 16-11-2011 or alternatively o....
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...., he considered the appellant's request is to be taken as the adjournment was sought three times. We are afraid that the above approach of the Commissioner is not in accordance with the right interpretation of the provisions of Section 33A. Giving choice of three dates for personal hearing in one letter and seeking of adjournment by the appellant by one month, would not amount to the fact as the adjournments have been sought three times. As such, we are of the view that the adjudicating authority's approach is not in accordance with the principle of natural justice. The impugned orders are, accordingly set aside and appeals remanded to the adjudicating authority for de novo decision. Needless to say that the appellants would be afforded a reasonable opportunity to put forth their case before the adjudicator. The appellant undertakes to file reply to the show cause notice within one month from today and not to seek unnecessary adjournments. The adjudicating authority to decide the matter thereafter as early as possible." 21. In the case of Meenakshi Associates (P) Ltd. (supra), following the decision of the Tribunal in the case Afloat Textiles Pvt. Ltd., the Tribunal has obs....