TaxTMI 
TaxTMI 
2022 (7) TMI 419
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....e for confiscation under Section 113(i) and 113(d) of the Customs Act 1962 and imposed the penalties under Section 114 of the customs Act 1962 and under Section 114AAof the Customs Act 1962 read with Section 11(1) of the Foreign Trade (Development & Regulation) Act 1992, Rule 11 and 14(2) of the Foreign Trade (Regulation) Rules, 1993 read with provisions of Section 50 of the Customs Act 1962. Being aggrieved by the impugned order Appellants filed Appeals before the Commissioner (Appeals), who vide impugned order-in-appeal upheld the order of Additional Commissioner, Customs House, Mundra and dismissed the appeals filed by the Appellant. Aggrieved, the appellants have filed these Appeals before CESTAT. 3. Shri Ajay Singh, learned counsel appeared for the Appellant M/s DRRK Foods Pvt. Ltd. and also for Co-appellant Shri Amit Marwaha and Shri Paritosh Gupta, learned counsel appeared for the appellant M/s V.Arjoon. Shri Ajay Singh submits that allegations are based on statements of persons and letters from Shipping line stating that containers were discharged at Jabel Ali Port in UAE coupled with statements of their employees. No inquiry or investigation, whatsoever was conducted as....
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....certificate declaring the destination as Iran was furnished before customs authority in India. There is no allegation or any evidence in the case, that the said certificates were amended at any stage in order to get the goods cleared in a country other than Iran. The findings of the Ld. Original authority as confirmed by the Appellate authority that the impugned goods have been exported to UAE merely because the same were discharged in UAE port, without verifying whether such goods could be exported to UAE in the absence of any evidence or whether these have been further shipped to Iran, is a finding totally based on assumptions and presumption. 3.3 He also submits that Original Authority as well as the Appellate authority failed to appreciate that the allegations in the notice that the goods have not reached the destination Iran, made merely by adducing evidence to the effect that the containers were offloaded at Jebel Ali Port in UAE. This at the most can create a suspicion/doubt, but by no stretch of imagination leads to conclusion that goods did not reach Iran. It is settled position in law that 'Suspicion', however strong, cannot be a substitute for evidence. Both the adjud....
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.... be incorrect in as much as the said goods were exactly as per the description at the time of effecting the exports. The change in B/L has been effected only after completion of all customs procedures and reaching of the vessel in international waters by the Shipping company. Penalty under Section 114AA is leviable only in case of any "material particular" being declared false or incorrect. Mere change of port of discharge from the one originally declared in SB in some case due to reasons known to consignee under such circumstance when the impugned goods are duty free and not involving any export incentives goods are not liable for confiscation and no penalty can be imposed. 3.7 He also submits that the rejection of the revised landing certificate issued by the Shipping Line M/s IAL Logistic India Ltd. in respect of the consignment covered under BL dated 30.08.2014 for flimsy reasons is total miscarriage of Justice and appears to have been arrived at without application of mind. The entire case was booked on the basis of landing certificates submitted by the shipping company and therefore once revised landing certificate on the basis of verification conducted by the shipping com....
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....320) ELT 3 (SC)] • Patel Engineering Ltd. [2014 (307) ELT 862 ( Bom) ] • N S Mahesh [2016 (331) ELT 402 (Ker)] • Chennai Marine Trading [2014 (304) ELT 354 (Mad.)] • A G Incorporation [2013 (287) ELT 357(Tri)] • Pundole Shahrukh [2014 (313 )ELT 573 (Tri.)] • GTC Industries Ltd. [2011 (264) ELT 433 (Tri.)] • Harminder Singh Chaddha [2018 (362) ELT 95] • Krishnaram Dyeing & Finishing Works [2007 (209) ELT 410 (Tri.) • Om Prakash Bhattia [2003(155) ELT 423 (SC) • Rajeev Verma [2007(218) ELT 200 Del] • Shri Rama Thenna Thayalan [2021-TIOL-2269-HC-MAD-CUS] • Shri Chinta Haran Oja CHA [2020-TIOL-611-CESTAT-DEL] 5. Heard both sides and perused the records of the case. We find that the case of the department is that M/s DRRK Foods Pvt. Ltd. had filed the Shipping Bills/Export documents for export of goods i.e Rice to Iran but the goods were delivered at UAE. The remittance was received in Indian Rupees from Iran instead of free convertible foreign currency. Thus, there appeared to be mis-declaration on part of Appellant. The revenue ....
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....erprises v. Commissioner of Customs - 2015 (330) E.L.T. 74 (Mad.) has observed as under : "8. While considering the value of cross-examination, the Apex Court in Ayaaubkhan Noorkhan Pathan's case (cited supra) held thus : "Cross-examination is one part of the principles of natural justice : 23. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Vaishampayan, AIR 1961 SC 1623, held that the rules of natural justice, require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given an opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice." A mere reading of the above said proposition clearly shows that the rules of natural justice require that a party must be given an opportunity to adduce all relevant evidence upon which he relies and further that the evidence of the opposite party should be taken in his presence by giving an opportunity of cross-examining th....
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....cation related to the said documents only on the basis of statement of persons it cannot be concluded that the impugned goods was not delivered in Iran. 5.3 We also noticed that in the case of food products the goods which are exported to Iran required Phytosanitary Certificate with each consignment which is issued by the Ministry of Agriculture and Farmer Welfare, Government of India. These certificates are required to be enclosed with each consignment and these certificates are issued by the officials of Ministry of Agriculture and Farmer Welfare, Govt. of India after proper inspection of each consignment. In the present case we have gone through the Phytosanitary Certificates produced by the Appellant. Each of these Phytosanitary Certificate carries e-Registration No., the name of the exporter in India and consignee in Iran, number of bags and its quantity etc. There is no allegation or any evidence that the said certificates were amended at any stage in order to get the goods cleared in a country other than Iran. 5.4 We further find that Appellant lost the ownership of the goods as soon as 'let export order' was issued by the Customs authorities. After the said let export....
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....not under the Customs Act. Though the show cause notice invoked Section 113(d) and 113(i) of the Customs Act but these provisions were invoked by only alleging violation of para 2.53 of the FTP and section 8 of FEMA, 1999. We therefore hold that there was no violation of Customs Act in any manner. There is no dispute about the description of the goods, its quantity and value. The export of rice was neither prohibited nor restricted. It is a well settled law that in respect of alleged violation of foreign exchange, it is the erstwhile FERA authorities or FEMA authorities who are competent to initiate the proceedings against the party. In support of this finding we rely upon the law laid down by this Tribunal in the case of Chinku Exports Vs. Commissioner of Customs, Calcutta reported in 1999 (112) ELT 400 (Trib). This judgment has been upheld by the Hon'ble Apex Court as reported in 2005 (184) ELT A36. This judgment has been followed by this Tribunal in the case of Hillari Computer Exports (P) Ltd vs. Commr. of Cus., Visaskhapatnam reported in 2006 (199) ELT 636 and in the case of Bank of Nova Scotia Vs. Commissioner of C.Ex (Adj), Bangalore reported in 2009 (233) ELT 260 (Tri.-Bang....