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TaxTMI 
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TaxTMI 
2016 (7) TMI 980
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....;ble Gujarat High Court remanded the matter to the Tribunal by its order dt.09.12.2015 with a direction to decide these application in accordance with the law. 3. Briefly stated, on completion of investigation of alleged illegal export of Muriate of Potash (MOP) Fertilizer grade, without a valid license, in contravention of the EXIM Policy (2002-07) & FTP (2009-14)and Fertiliser Control Order, by M/s Saraf Impex Pvt. Ltd. (now M/s Skyrise Overseas Pvt. Ltd.), Show Cause Notice was issued to the Applicants on 14.8.2012 proposing penalty under the Customs Act,1962. In the notice it was alleged that M/s Saraf Impex Pvt. Ltd. along with other applicants during the period 20.10.2007 to 12.10.2009, exported a total quantity of 33,432MTs of MOP against 198 shipping bills mis-declaring it mostly as Industrial salt; and the total value was also mis-declared as Rs. 50,71,42,466/-, against the correct value was Rs. 130,08,29,836/-. It was further alleged that the said quantity of MOP had been imported by M/s Indian Poash Ltd.(M/s IPL) at concessional rate of duty to be used as manure/fertilizer and meant for the farmers, whi....
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.... Shri Ashok Agarwal regarding payments to M/s Sandeep Suppliers and M/s Ramdev Chemicals and also regarding payments to M/s Sandeep Suppliers and M/s Ramdev Chemicals and also regarding visits to Malasiya and Taiwan with Shri Ashok Agarwal interaction with the buyers of MOP. He also informed that he used to interact with foreign buyer through e-mail; that both of them, he and Shri Ashok Agarwal had discussed modalities for the said exports with the buyers of MOP; that he had transferred funds through RTGS in the accounts of Shri Shantilal Mali for procurement of MOP; that they had exported MOP by declaring lower value on the export documents, however for bringing remittances of the actual value they had to submit documents of actual value before the bank authorities, so for this reason two parallel sets of shipping bills were generated; that he was aware that MOP was restricted item in terms of foreign trade policy. He further stated that they had exported 22000 MT of MOP in the firm M/s Saraf Impex Pvt. Ltd. and profit margin PMT was approx. Rs. 3000/- PMT which he shared with Shri Ashok Agarwal; that they had prepared two sets of documents i.e. one set showing l....
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....araf Impex Pvt. Ltd. I also find that on verification of the documents supplied by the AGM, Bank of India, Kolkata Overseas Branch, Kolkata includes Export invoices, Exchange Control Copy of Shipping Bills along with SDF Declaration filed by the exporter by the investigating agency, it revealed that these export invoices and SDF Declarations have been signed by Shri Pravin Saraf, Director of M/s Saraf Impex Pvt. Ltd. It clearly indicates that Shri Pravin Saraf was fully aware regarding export of Muriate of Potash in the guise of 'Industrial Salt', 'Feldspar Powder', 'Quartz Powder', and 'Talk Powder' etc and knowingly fully he had submitted S/Bills and other export documents of different value before the Bank officials which were of forged/fabricated nature. 85.3 I also find that Shri Pravin Saraf has submitted two different sets of Shipping Bills i.e. one Shipping Bill showing lower value before Customs and other Shipping Bill of same number showing higher value before Bank for getting higher remittances and the said facts were also admitted by Shri Sunil S Gokaran, Asst. General Manager, Bank of India, Kolkata Overseas Branch in his statement and he also stat....
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.... and in the export documents M/s Saraf Impex Pvt. Ltd. had declared the said export goods as 'Industrial Salt'. 86.2 Further, I also find that the Secretary (Trade), Brussels vide letter dt.30.04.2012 have forwarded the documents filed by the importers of the goods (exported by M/s Saraf Impex Pvt. Ltd) at the port of import i.e. import documents filed before Italian Customs, Export Invoices of M/s Saraf Impex Pvt. Ltd, Sampling and Analysis Report forwarded by M/s Saraf Impex Pvt. Ltd and Country of Origin Certificate issued by Chamber of Commerce. In the said letter, it was also informed that goods exported by M/s Saraf Impex Pvt. Ltd vide Invoice Nos.SIPL/EXP/181/09-10, dt.01.09.2009, SIPL/EXP/182/09-10, dt.01.09.2009, SIPL/EXP/183/09-10, dt.01.09.2009, SIPL/EXP/184/09-10, dt.01.09.2009, consigned to M/s Soc Chimica Emilio Fedeli S.P.A. and goods exported by M/s Saraf Impex Pvt. Ltd vide Invoice Nos. SIPL/EXP/44/09-10, dt.26.05.2009, SIPL/EXP/070/09-10, dt.20.06.2009, SIPL/EXP/062/09-10, dt.15.06.2009, consigned to M.P.S.R.L., VIS. INCENZO CONTRADA, SAUDA DEL CERRO 82030, S.SILVATORDE T/BN, ITALY, were declared as 'Muriate of Potash' at the port of import by....
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...., its diversion by the authorized dealers, procurement of packing material i.e. P.P. bags, change of packing in various godowns, transportation to various ports, its export declaring as industrial salt, actual realization of export proceeds through banks, and the acceptance of overseas buyers that the goods received were MOP. Thus, the evidences cannot be out rightly disbelieved and discarded but have to be accepted as the same carry sufficient evidentiary value even though few statements were not subjected to scrutiny by way of cross-examination, as argued, however, its necessity and impact on the case would be examined at the time of disposal of the Appeal. 8. The learned Advocate appearing for M/s Saraf Impex Pvt. Ltd., the alleged master mind of the illegal export of MOP assailing the evidences, argued that the confessional statements of Shri Pravin Saraf, cannot be relied upon as subsequently he has retracted the same. However, we find that answering the said argument, the learned Commissioner placed reliance on the judgment of Hon'ble Supreme Court in the case of Vinod Solanki Vs UOI - 2009 (233) ELT 157....
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....erefore it is valid. We find force in the contention of the Ld. A.R. as there is no judgment on the subject by the jurisdictional Honble Gujrat High Court and the matter is now before the Honble Supreme Court. Besides, the applicability of the said judgment to the notice issued after 08.4.2011 would be examined at the time of disposal of the Appeals. 12. In the result, therefore, it cannot be said that the aforesaid applicants are able to make out a prima facie case on merit for total waiver of pre-deposit of penalty. At this stage, the penalties imposed on the applicants may look very harsh, but, if the gravity of allegation/offence is considered, against the backdrop of evidences and at the stage of final hearing of these appeals, if it could be established by the Revenue that the goods exported was not Industrial Salt but MOP and the said act was possible by diversion of the MOP imported at concessional rate of duty and meant to be used as fertilizer by the Indian farmers, then the case would tilt in favour of Revenue, in as much as smuggling of MOP out of the Country could be a reason for socio economic plight of ....