TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 680
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....rey fabrics under 6 ARE-1 nos. 1/2002-2003 to 6/2002-03 all dated 9.4.2002. They submitted proof of export in the form of (photo) copies of the relevant documents. On perusal of the said proof of export, it was revealed that while the goods were cleared from the factory on 9.4.2002, the (14) shipping bills claimed to be related thereto were noted between 5.9.202 to 18.9.202 at Calcutta Custom House. On enquiry, the concerned CHA whose seals appeared on the shipping bills categorically denied having dealt with the said documents or the goods. They also found that seals marks on the S/ Bs were not identical to their seals. The enquiries at the port also revealed that the goods claimed to have been cleared under the said six ARE-1s were never presented at the port. On the copy of B/ Ls , the seal of M/s Draft Cargo Ways India was found. On being contacted, their manager categorically stated that the said B/Ls were never issued by them and the pattern of the B/L numbers is also not theirs and that the said goods were never handled by them. He said they had issued only 359 B/Ls during 2002 and B/Ls bearing Nos. 360 and 375 (the numbers found on the copies of the B/Ls submitted by appell....
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....; (iii) He does not have residential address and phone number of Sheikh, proprietor of M/s Super Fabrics; (iv) He does not know the name or address or contact details of the foreign entity to which the exports were made. (v) He does not have copy of export orders received for the said consignments; (vi) He also admitted that the said goods were removed under the B-17 bond executed by DFL and the responsibility to produce the original proof of export clearly lies on DFL/him. 6. The appellants in their appeal and during hearing have also contended that the case is made on the basis of statements of various persons and they were not allowed their cross-examination and therefore their statements cannot be relied upon for the purpose of holding them guilty. They said that they exported goods through merchant exporter and all the documents would be available with him. The said export proceeds have been received in their accounts at S....
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....see cannot be used without giving them opportunity of cross-examining deponent" as held by Delhi High Court in case of Basudev Garg Vs. CC-2013 (294) ELT 353 (Del.); (ii) Right to cross-examination in quasi-judicial proceedings can be taken away in circumstances specified in Section 9D of Central Excise Act, 1944 as held in J&K Cigarettes Ltd Vs. CCE - 2009 (242) ELT 189(Del.), and we shall scrupulously follow this settled position in law. 10. It has been brought out earlier that inability to produce valid proof of export itself makes M/s DFL liable to pay duty (along with interest) leviable on the impugned goods. In this case, it is also seen that M/s DFL cleared the goods without payment of duty not for being taken to port for export but for being taken to Surat to the consignee M/s Super Fabrics. The goods were cleared to be taken to Surat as per the ARE-1s and also as per the statement of Shri Vijay Vishwaroop , Director of M/s DFL. This act of M/s DFL was illegal as M/s Super Fabrics had no locus standi to source the goods duty free and M/s DFL had no authority to consign the impugned goods duty free to Surat to M/s Super Fabrics. Such clearance without payment of duty was cl....
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.... that the goods were exported through merchant exporter M/s Super Fabrics. He has admitted that the impugned goods were covered under the B-17 bond executed by M/s DFL, they were cleared without payment of duty under ARE-1s not for transport directly to the port for export as is the requirement, but for transport to Surat for M/s Super Fabrics and M/s DFL/ Shri Vijay Vishwaroop had no reason whatsoever to believe that M/s Super Fabrics had any locus standi to source/receive goods duty free. He allowed the goods to be cleared on ARE-1s of Surat while under ARE-1s the goods have to be directly sent to port. He was aware that S/ Bs were got processed about five months after the date of ARE-1s (i.e. the date of clearance of goods duty free) and he has admitted that he does not have the valid proof of export for the impugned goods. He has not questioned (and rightly so) the documentary evidence of non-export in the form of Export General Manifests which were part of the RUDs (though as made clear earlier, the onus was on the appellants to produce valid proof of export and not on the department to prove that the goods were not exported). Thus while Shri Vishwaroop's involvement and a....