TaxTMI 
TaxTMI 
TaxTMI 
2017 (11) TMI 1410
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....declared the export value in the shipping bills and availed ineligible DEPB benefit in violation of various provisions of Foreign Trade (Development and Regulation) Act, 1992, Foreign Trade (Development and Regulation) Rules, 1993, Foreign Exchange Management Act, 1999, Customs Act, 1962 readwith Shipping Bill and Bill of Export (Form) Regulations, 1991 and Notification No. 27/2001-CUS (NT) dated 31/05/2001. Based on an intelligence received from Income Tax Department with reference to financial irregularities in the accounts of the main appellant, the officers of customs conducted certain follow up investigation, by scrutinizing the documents, recording statements of partners of the exporting firm, sellers of hand tools and various other information including overseas verification. On completion of investigation, the Revenue initiated proceedings against the appellants to re-determine the export value of goods exported by the main appellant and to impose penalties on the main appellant and the other two appellants. The case covered 133 consignments of hand tools with a declared value of Rs. 18.37 crores and claim for benefit under DEPB scheme to an extent of Rs. 2,92,91,117/-. The....
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....ences available on record and the decided case laws referred to, issued the final order. He ordered that goods with FOB value of Rs. 17.66 crores exported by the appellants were liable for confiscation. He imposed penalties of Rs. 8 crores and Rs. 2 crores each on the main appellant and the other two appellants (partners) under Section 114 (i) of the Customs Act, 1962, respectively. 5. The learned Counsel appearing on behalf of all the appellants submitted that the undisputed facts of the case are that the appellants made the impugned exports. The same were to unrelated parties. There is no allegation of improper flow back of any extra consideration or non-remittance of any foreign exchange as per the declared value. The statements of persons who were not cross-examined cannot be relied upon. The remand directions of the Tribunal were not complied with by the Original Authority. The imposition of penalty and confiscation is beyond the scope of the remand order of the Tribunal. The submissions of the suppliers cannot be relied upon in terms of Section 138B of Customs Act, 1962 readwith Section 138 of the Indian Evidence Act, 1872. The ratio of the decision in Kanak Metal Industries....
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....he Original Authority is correct in imposing penalties on all the three appellants. 8. We have heard both the sides and perused the appeal record. First, we take up the point raised by the appellants regarding the Original Authority not adhering to the remand direction of the Tribunal while deciding the case afresh. We have carefully gone through the impugned order. We note that all the major points raised by the appellants have been dealt with by the Original Authority. None of the significant issues raised by the appellant with reference to purchase of impugned goods, documentation and legal points regarding cross-examination and reliance placed by the Revenue on various evidences collected during investigation have been left out by the Original Authority. The point for decision is whether the analysis of evidences and legal provisions, as made by the Original Authority is sustainable or not. 9. In the remand direction, the Original Authority was asked to examine the application of Section 9D of Central Excise Act (Section 138B of Customs Act, 1962) and the directions of Hon'ble Delhi High Court in J&K Cigarettes (supra) with reference to cross-examination of persons who gave s....
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....y did not carry out chrome plating. Finding serious infirmities in certain depositions made during cross-examination, the Original Authority appreciated the facts as emerging from the original statements which were corroborated by the documents and deposition by other persons including Shri Mahaveer Agarwal. On careful consideration of the examination of the Original Authority with reference to various statements and cross-examinations of the connected persons we are of the considered view that these are correctly analysed and appreciated and the cumulative analysis of such evidence cannot be questioned. There is no reason for us to arrive at a different conclusion on these evidences. 11. Regarding the application of the decision of the Tribunal in Kanak Metal Industries (supra) to the facts of the present case, we note that issue has been examined by the Original Authority. It is recorded that in the said case, there was no challenge to the FOB value of export goods. The Adjudicating Authority had determined the PMV of the export goods on the basis of local marketing enquiry and had equated the said value as the FOB value for calculating the DEPB benefit. The Tribunal held that t....