TaxTMI 
TaxTMI 
TaxTMI 
2015 (9) TMI 343
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.... is concerned, the order under challenge is passed on 26th September, 2013 in Appeal No. C/1049/2009. The Tribunal reverses the finding and conclusion of the Commissioner and holds that the said Vora is also involved in the transactions and which led to inflated and bogus claims of refund / rebate / drawback. Therefore, it decided to impose penalty of Rs. 15 lakhs under section 14(1) of the Customs Act, 1962. There are two appeals against two orders of the Commissioner exonerating and dropping the proceedings against Shri Vora and which appeals of the Revenue were dealt with by the Tribunal. The said Vora does not deny that he is in the business of manufacturing and dealing in bearings and for about 23 years. He was also exporting goods to Russia. However, he has absolutely no connection with the exports and which have been the subject matter of the proceedings. 3. The transaction which was the subject matter of the adjudication proceedings has been set out in great details, but for the purpose of appreciating a limited argument we do not deem it necessary to refer to the same. 4. Suffice it to note that the appellant - Vora had claimed that he was not an active but a dormant Dir....
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....Rules, 1995, the FOB value of the goods reported should not be redetermined and appropriate directions and orders be not made for imposing penalty. 5. The allegations in the show cause notice are that the appellant and Iqbal Mohan Amritlal Mehra have colluded and created front companies luring them with monetary gains. They have managed to open and float M/s. Radheshyam Exports Pvt. Ltd., Mumbai and several other companies. It was alleged that the appellant and the said Iqbal Mohan Amritlal Mehra controlled the activities of these companies and some firms. Thus incharge of these entities have acted at the behest and on the instructions of these two persons. Then, there are allegations made against the customs house agent and of misdeclaration of the value of the goods exported. That is how the appellant was proceeded against. We once again refrain from setting out these allegations in further details and equally the response of the appellant thereto. 6. It is alleged that after the two interim replies were given and the proceedings were conducted by the Adjudicating Authority, namely, Commissioner of Customs (Adjudication), Mumbai, he made an order dated 22nd January, 2008, where....
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....that it was not the appellant who had any connection with M/s. Radheshyam Exports Pvt. Ltd. In that regard, the Commissioner had referred to the specific statement in the cross-examination of one Sandeep Naik, Director of M/s. Radheshyam Exports Pvt. Ltd. He conceded that the appellant Vora had no connection with this company - M/s. Radheshyam Exports Pvt. Ltd. at the relevant time. Mr. Sridharan points out that all the statements were recorded but retracted and promptly. They were retracted at the first available opportunity. Some of the statements recorded by the DRI in Nashik Central Prison could not have been considered and admitted in evidence. Mr. Sridharan submits that even if any finding or conclusion can be based on a confession which is retracted still the confession and admission therein has to be corroborated by independent material. Such independent material is hopelessly lacking in this case. There is no document on record by which the Tribunal could have concluded that it is the appellant who had floated the company or that the intent along with others was to float companies and to gain or avail of the drawback benefits. In the circumstances, he would rely upon the q....
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....would submit that no capital can be made of the delay which may have occurred on account of the Tribunal being required to peruse voluminous record and numerous documents. It is not that mere delay has, therefore, resulted in any vital or important material being omitted from consideration. In other words, the Tribunal order cannot be termed as perverse. The appeal, therefore, be dismissed. 12. With the consent of both advocates and from a perusal of the record, we find that the Tribunal's order raises the following substantial question of law : "Whether in the facts and circumstances of the case, the Appellate Tribunal was right in imposing penalty on the Appellant by ignoring the relevant material on record and relying upon irrelevant material?" 13. Considering the limited arguments, we dispose of this appeal finally. We would once again clarify that it is not necessary for us to refer to other allegations in the show cause notice in details or the responses thereto. We are further careful in clarifying that our order in this appeal is restricted to the case of the appellant - Vora as placed before the Adjudicating Authority and the Tribunal. Our reference to the case of ....
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....n even adjudication proceedings. We do not, therefore, know as to on what basis, even if all had consented, that the Adjudicating Authority and the Tribunal allowed co-noticees to cross examine each other. Here also in this case and in the Memo of Appeal in the present matter, we find that the appellant has while disassociating himself completely from the transactions and the entities, sought to inculpate Mr. Mehra. Therefore, it is one version against the other. In such circumstances, the Tribunal as also the Commissioner would have been properly advised to chart a safe course and as is found in the above principles. 15. Be that as it may, what we find is that the Commissioner has referred to the materials as far as the present appellant is concerned. At para 44(i) running page internal page 67 of his order the Adjudicating Authority observes that the allegations against Kiran Nagindas Vora are that he entered into a conspiracy with Iqbal Mohan Amritlal Mehra to make fictitious export to Russia against repayment of state credits granted to erstwhile Soviet Union Republic (USSR) and colluded with others. He created front companies luring them with monetary gains and have managed t....
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.... appellant and Mehra. From paragraphs 5.1.1., the Tribunal at page 46 refers to the allegations, the transactions and the drawback. However, after being made aware of the findings of the Commissioner and referring them in para 4.1.2, we are not able to find any independent conclusion of the Tribunal. The Tribunal has not concluded that the Commissioner's reasoning is either perverse or vitiated by any error of law apparent on the face of the record. If the statements made by Vora have been retracted and the Tribunal was inclined to proceed on the footing that retracted statements can be utilised by the Revenue, then, it was incumbent upon it to refer to the corroborative material. That the Tribunal does not find it necessary to refer to it in details is evidenced by virtue of its general and sweeping observations in para 4.1.3 of the order. If the cross-examination of Naik and the conclusion of the Commissioner (Adjudicating Authority) drawn therefrom is contrary to the overwhelming evidence on record, then, we do not find any reference to such evidence save and except the interim replies given to the show cause notice wherein the said Vora - appellant before us purports to dea....