TaxTMI 
TaxTMI 
2007 (1) TMI 626
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....ibunal refers to exporters, their directors and others. Quite evidently, the appeal against Respondents 2 and 3 have been filed by the Commissioner by treating them as one of the "others ". This, in the submission of the respondents, is clearly impermissible as it was necessary for the Member, CBEC to have specifically indicated the names of the persons against whom an appeal was directed to be filed. The Commissioner (Adjudication) could not be vested with a discretion to decide who the "others" should include. It was therefore submitted that the appeals filed by the department against Respondents 2 and 3 were without jurisdiction and hence not maintainable. 4. Insofar as Respondent 1 is concerned, the following contentions were urged in the course of the hearings held before the Tribunal : (i) In all, 14 show cause notices were issued to the Respondent 1, which have been categorized in four groups in the impugned order of the Commissioner of Customs (Adjudication). Notices covered by Group I and II relate to alleged manipulation of export documents and consequent penal action under Sections 114(i) and under Section 117 of the Customs Act, ....
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....ts the Tribunal to determine (i.e. whether appellant can be held guilty of abetment) does not arise out of the impugned order of the Commissioner, the order of Review passed by the Board and the appeal filed is not maintainable. In this regard reliance was placed on the decisions of the Tribunal. [Extrusion Processes Ltd. v. Collector - 1994 (69) E.L.T. 144; Collector v. MRK Frozen Food Exports - 1998 (103) E.L.T. 383; Collector v. Eastern Aeromatics -1999 (107) E.L.T. 208; Collector v. Swastik Coasters - 1999 (107) E.L.T. 533, Collector v. Lyka Labs - 1999 (109) E.L.T. 420; J & Ice Creams v. Commissioner - 1999 (114) E.L.T. 965; JBS Capacitors v. Collector - 1995 (79) E.L.T. 131]. (v) Without any prejudice to the aforesaid contention as to the maintainability of the appeal, it was submitted that the appeal seeks to charge Respondent 1 with abetment for those acts of the Respondent "which resulted in the issue of DEEC licences showing higher quantity of PFY for import". This is evident from para 4(vi) of the Review Order which reads thus: "4(vi).......................abetted the offence of manipula....
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....termination before this Tribunal is whether the respondent had abetted the offence of manipulation of the Export Promotion (EP) copy of the shipping bills which resulted in the issue of DEEC licences showing higher quantity of PFY. (viii) It was submitted that the arguments made by the ld. DR in the course of hearing went far beyond the above ground as the ld. DR read out several allegations in the Show Cause Notices which were related to manipulation in the 'duplicate' copy of Shipping Bill and their removal from the Kandla Custom House, etc., which though contained in the show cause notice were not sought to be revived in the revenue's appeal by this Hon'ble Tribunal. The scope of the revenue's appeal cannot be expanded to revive all the allegations and charges contained in the notice in absence of specific grounds and reasons for doing so. It was therefore submitted that the various arguments made by the ld. DR relating to manipulation of duplicate copy of the shipping bill and their removal from the Kandla Custom House are not relevant or germane for the purpose of revenue's appeal and therefore need to be excluded from consideration. (ix) Having brought out t....
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....ed export promotion copies of the shipping bills after the goods were exported and on that basis they hao fraudulently obtained the DEEC licences, which has resulted in evasion of duty. It is also pertinent to note that Shri Deepak Bajaj and Shri Rajiv Kumar Bajaj carried electronic typewriter all the way to Kandla for typing S/Bs which also goes to establish their design to alter the S/Bs. at a later stage subsequent to export. Hence, if any manipulation in the triplicate copy of the S/Bs has been done by the exporters after the goods have been cleared by Customs, the CHA cannot be held liable. Shri Rajiv Kumar Bajaj, in his statement dated 27-3-1995 (in reply to query No. 16) had admitted that they inserted one figure on the left side of the weight column, after the S/Bs were passed, which shows that it was a post clearance alteration for which CHA cannot held liable." (x) The ld. Counsel submitted that the appeal filed by the Revenue does not contain any basis to contest the findings of the Commissioner that the manipulation in the EP copies of the shipping bills was carried out by the exporters themselves by using a portable typewriter carried by them....
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....e ground that contrary to his claim in the statement that he was absent from Kandla at the relevant time the hotel record was otherwise. It was pointed out during the hearing that the hotel records and the statements of the hotel's representatives at Kandla itself showed that the respondent was not present in Kandla during the period when the shipping bills were filed and processed. Further the Apex Court in the case of CCE v. Trivandrum Rubber Works Ltd., 1999 (106) E.L.T. 9, has also held that unless here is evidence on record to show that a CHA continues to remain as the agent of the importer, even after the goods have been cleared through customs, it cannot be presumed that the CHA continued to be the agent of the importer. Though the decision is in regard to service of demand notice on the importer, the principle laid down in the said judgment is equally applicable to the present case. Therefore, if any manipulation in the Export Promotion Copy of the Shipping Bill had been carried out by the exporters after the goods have been cleared by the Customs, there can be no basis for presuming that the CHA was responsible for such action. (xii) Based on the above submissions....
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.... to the conclusion that the licences were obtained for an inflated quantity of PFY on the basis of manipulated exchange control copies, which were given to the exporters after shipment, whereas copies of Shipping Bills resumed from the respondents show the correct weights, which are relied upon by DGFT for getting at the correct weight. In these circumstances, it is highly probable that manipulations on the Exchange Control Copies of the S/Bs could have been done by the exporters after shipment without any abetment or assistance from the respondents. The Revenue has not even at this stage, rebutted the above findings by producing any evidence to show that exchange control copies were tampered with by the respondents. Records like dock examination register taken over from the docks also show the correct weights showing that the respondents have presented the S/Bs to the docks showing the correct weight. The hotel records heavily relied upon by the Revenue to allege that Shri B.P. Kotak was personally involved, being present during the shipment and during the period of logging the DEEC books, do not show that Shri Kotak was in the hotel during or round about those dates. Personal inv....
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.... bill No. 5114, dated 30-3-94 which is part of our shipment from Kandla, which is the subject matter in this case; that in case of P.A. International he also a co-noticee, the Bank of Tokyo has informed by a letter dated 15-5-2001 that they have sent a duplicate GR form to RBI; that Part F of Part II of the D.E.E.C. Licence pertains to exports and is crucial as it shows the details of the audit by the Customs authorities and their report thereon, in relation to exports; that it is also significant to mention that the Audit is not conducted on the basis of E.P. Copy but on the basis of photocopy of the Original Shipping Bill; The DRI has obtained from DGFT, all copies of licences and documents relating to our exports from Kandla and enclosed these in the R.U.D's; para 3.5(i) at page 14 of the standing order specifically stipulates that the DEEC copy of the shipping bill has to be cross-checked with the photocopy of the original copy of the shipping bill retained in the export filed; it is not the department's case that no collusion with the Audit Officers; in fact at page 24 of the impugned order the Commissioner (Adjudication) has held "in a case where Departmental Officers are als....
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....hat the DR has given figures relating to various Shipping bills and the appellants running into about 8 pages which do not appear to have been duly considered in the impugned order. Therefore, it is difficult for us to appreciate the same; that the DR has also staled that there is no violation of principles of natural justice. He has relied on the cases of V.K. Thampi v CC, Cochin - 1988 (33) E.L.T. 424 (Tri.)., that he submitted that no issue of transfer and transferee since importer and exporter is same person; in support of his contention he relied on in the cases of FEDCO (P ) Ltd. v. S.N. Bilgrami - 1999 (110) E.L.T. 92 (S.C.), New India Assurance Co. Ltd., Shimla v. Kamla and ors - 2001 (4) SCC 342, East India Commercial Co. Ltd. v. CC. Calcutta - 1983 (13) E.L.T. 1342 (S.C.), Blue Blends (India) Ltd. v. CC., Mumbai - 2001 (136) E.L.T. 411 (Tri. - Mum), A.R. Gupta v. CC, Mumbai - 2000 (126) E.L.T. 1152 (Tri.), Suraj Sales Corporation v. Commissioner of Customs, Mumbai - 2002 (149) E.L.T. 1413 (Tri. - Mum), ICI India Ltd. v. CC (Port) - 2003 (151) E.L.T. 3s36 (Tri.), Taparia Overseas (P) Ltd. v. Union of India - 2003 (161) E.L.T. 147 Bom. He also in his written submission in r....
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....tents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time." He also referred Section 36B of the Central Excise Act, 1944 with regard to admissibility of micro-films and computer print outs as documents as evidence. With regard to remittance of full foreign exchange into India is not sure indication of declared export. In this regard he relied on the decision in the case of Pankaj v. Sheth - 1997 (90) E.L.T. 31 (Cal - HC) and Merchant Exports v. CC, Cochin - 2003 (162) E.L.T. 466. As regards the admission of guilt he submitted that if no guilty then there is no need of further investigation. In this regard he relied on the decision in the case of Shri Katki Gurakhu Karyalaya - 2003 (158) E.L.T. 757 (Tri. Kol), Besco Ltd. -2001 (137) E.L.T. 168 (Tri.-Kol). As regard the effect of fraud which is normally vitiate any act or order. He relied on the decision in the case of Indian Bank v. Satyam Fibres (I) Pvt. Ltd. - 1996 (005) SGC-0550-SC and CC, Kandla v. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.). With regard to enhancement of penalty he relied on the decision in the case of Abdul Khader v. Union of India - 2003 (157) E.L.T.....
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....er personally or through instruction to his staff, has not been established. No doubt, an area of suspicion was created, because of his behavior, of not responding to the summons and coming out of Mumbai to keep himself scarce. It, however, creates only suspicion which can not take place of proof in the absence of any positive evidence against Shri Kotak's involvement in manipulation of Shipping Bills. The Commr. has, therefore, extended the benefit of doubt to Shri Kotak and discharged him from all the three Show Cause Notices. 12. With regard to other persons to whom the Commr. has discharged, he has recorded that charges and allegations are general and no specific allegations of their involvement in alternation of the Shipping Bills is discussed in the Show Cause Notices. And also he did not find direct evidence implicating persons discharged. Therefore, in our opinion we do not find any justification for enhancement of penalty to CHA. who have been discharged by the Commr. after going into great details and on the basis of available records. We would, therefore, not like to re-open their cases. It may be mentioned that we have already dismissed the appeal of Dee Gee Exp....
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....ces the same cannot be done from retrospective date as held by the Apex Court as reported in 1992 (58) E.L.T. 163 (S.C.) and 2000 (12) 577 (S.C.). The affidavit of Saran Exports gives so many facts and figures which have not been considered by the Commissioner and findings recorded thereon. It may not be possible for us to go in so many details of documents. The only alternative is that all the facts and figures mentioned in the affidavit may be looked into by the Commissioner and the Commissioner may pass a fresh speaking order after affording reasonable opportunity of hearing to the appellants. 14. The reply to the affidavit filed by the department also contains so many facts and figures on which the findings is needed by the Commissioner. Both the sides have cited several case laws which were not cited before the Commissioner earlier. Therefore, it is necessary that the same are pursued by the Commissioner. We, therefore remand all the appeals to the Commissioner for fresh adjudication except the appeals of the Revenue seeking enhancement of penalty and imposition of penalties on CHAs. Revenue's appeals in this regard are dismissed. (Pronounced in Court) Sd/-....
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....) and ld. Member (T) and further pursuing the impugned order passed by the adjudicating authority, I proceed to decide the reference as under : (i) An Order recorded by the Hon'ble Member (J) Shri Krishna Kumar is well-reasoned one after due consideration of all the facts and circumstances of the case and as well as the law on the given subject. Therefore, I do not feel it necessary to reiterate the facts and circumstances covering these appeals at the cost of reposition except those which are canvassed before me and relevant for the purpose of the reference. I have also perused the order recorded by Dr. C. Satapathy, learned Member (T) which is cryptic in nature and based on the claim of the exporters about the alleged manipulation by the CHA and CHA is denying the same. Therefore, I am unable to pursue myself to agree with the views expressed by the ld. Member (T). Mere basing on the exporters claim that the CHA is responsible for the manipulation of Shipping Bills in view of specific denial of the same by the CHA and in absence of specific finding on the charge of conspiracy against the respondents. Whereas, the order of ld. Member (J....