2015 (5) TMI 94

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....der DEPB claim from Jodhpur. All the exports were made to Dubai. The total declared FOB value of consignments was Rs, 18.37 crores and DEPB claim was Rs. 2,92,91,117/- at the rate of 13% to 16%. Sometime in 2006, on receipt of information from the income-tax department that the appellant have overvalued the export consignments to reduce their profit margin, customs department initiated enquiry. In the course of enquiry, investigating officers ascertained the names of the suppliers from whom hand tools exported had been procured. The suppliers of the hands tools were M/s.Shreenath Textiles Jodhpur, M/s.Vikas Tools, Jalandahar, M/s.Kohinoor Forgings, M/s.Suman Manufacturing Co., Jalandhar, M/s.Jai Industries M/s.Kingson Forgings and M/s.Rajas....

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....sioner, accordingly imposed penalty of Rs. 20 crores on the appellant firm and penalty of rupees one crore each on the partners of the appellant firm under section 114(1) of the Customs Act, 1962. 2. The appellants filed appeals to the Tribunal against this order of the Commissioner. The Tribunal disposed of the appeals vide Final Order No.C/117-119/2011-Cu (DB) dated 17.3.2011 and remanded the matter to the Commissioner for de novo adjudication after permitting cross examination of the seven persons, namely, Shri Sukesh Talwar, Manager of Shri Ram Tools (P) Ltd., Shri Mujjafar Ali, proprietor of M/s.Kohinoor Forgings, Shri Raj Kumar, Proprietor of M/s Jai Industries, Shri Shanti Sikka, partner of M/s.Suman Manufacturing Co., Jalandhar, ....

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.... examination, but they did not come. During the personal hearing also, the appellants submitted written submissions. Thereafter, another personal hearing was conducted on 28.2.13 and at that time also the appellants appeared and made submissions. 4. The matter was adjudicated de novo by the Commissioner vide Order-in-Original No.2013 dated 26.3.2013 by which the Commissioner once again held that FOB value had been mis-declared in order to claim higher DEPB benefit and accordingly he imposed penalty of Rs. 20 crores on the appellant company under section 114 (i) of Customs Act, 1962. Besides this, penalty of Rs. 1 crore (one crore) each under section 114(1) was imposed on Shri Mukesh Agarwal, and Shri Mahaveer Agarwal, the Partners of M/s....

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.... that the entire basis of allegation, as mentioned in the SCN, was information received from Income Tax Department of overvaluation of the export price that the Income-Tax Department in the assessment order has accepts the export price and when the Income-Tax Department has not found any overvaluation or manipulation in the export price, such allegation in SCN should have been dropped and that in any case, the impugned order has been passed without application of mind and without considering the submissions made in the appellants' written submission dated 14.2.12 inasmuch as while the appellants made item-wise submissions explaining as to why the FOB price declared in the shipping bills is correct, these submissions have not been consid....

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.... Delhi High Court on this issue in para 28 to 32 its judgement in the case of J & K Cigarettes vs. Commissioner of Customs, Delhi reported in 2007 (242) ELT 189 and has not given a finding that on the point as to whether the two witnesses, who did not turn up for cross examination are dead or cannot be found or are incapable of giving evidence or are being kept out of the way by the appellant or their presence cannot be obtained without an amount of delay or expense , which is unreasonable. Just because the witnesses did not appear for cross examination, their statements cannot be used against the appellant by invoking section 9D(2) read with section 9D(1) (a). For invoking these provisions, a finding by the adjudicating authority after hea....