TaxTMI 
TaxTMI 
2022 (12) TMI 5
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.... pursuant to an investigation, issued a show cause notice dated 06.03.2009 contending inter alia that the factum of supply of furnace oil to the four named vessels of m/s Essar Shipping Limited namely MV Badri Prasad, MV Mahavir Prasad, MV Chandi Prasad and MV Anassa, was not established with reference to the discrepancies observed in the documents, during the investigation. Basis the same, the Notice suggested that the actual user condition had been violated by Essar Shipping Ltd. and the goods cleared against the SFIS licenses were diverted / sold in contravention to the provisions of para 3.6.4.6 of the Foreign Trade Policy (FTP). The adjudicating authority vide his order in original dated 14.11.2011 upheld the allegations made in the show cause notice and consequently, confirmed the demand of duty, interest and penalties. Being aggrieved by the said order-in-original, the appellants filed the present appeals. 2. Shri Vishal Agarwal learned counsel along with Ms. Dimple Gohil, Advocate appearing on behalf of the appellant submits that the adjudicating authority confirmed the allegations without taking cognizance of the documentary evidence produced by M/s Nayara Energy Limite....
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....ter of MV Badri Prasad recording that furnace oil at the time of arrival was 586 MT while at the time of departure was 1690.7 MT. B. Furnace Oil has been supplied to MV Mahavir Prasad under cover of Shipping Bill C-07 dated 14.03.2007. i. Departure Report filed with Surat Customs in respect of barge Hope Island -II dated 19.03.2007 which records that the same had arrived with ships stores (Furnace Oil)-580 MT. ii. Bunker Delivery Note signed by the Chief Engineer of MV Mahavir Prasad noting that 558 MT of furnace oil had been delivered on 20.03.2007. The same also bears a counter signature of the authorized signatory of barge Hope Island-II. iii. Invoice of Gujarat Maritime Board (GMB) dated 16.03.2007 on ZEE Shipping in respect of 580 MT of furnace oil carried by barge Hope Island -II. iv. Invoice of ZEE Shipping dated 23.03.2007 in respect of freight charges for transportation of 558 MT furnace oil for MV Mahavir Prasad from Bedi to Hazira and Hazira jetty to Hazira Anchorage. v. Email from Zee Shipping services to Port Officer, GMB; Coast Guard; Indian Navy informing them that barge Hope Island -II would call upon Hazira Anchorage ....
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....ord book of MV Anassa which records that on27.04.2007, 557 MT of furnace oil has been loaded between 0900 hrs and 1400 hrs. 3. He submits that on the basis of numerous documents for each consignment as referred above, it clearly establishes that the furnace oil supplied by the appellant M/s Nayara Energy Limited has been delivered to the vessels of Essar Shipping Limited. Accordingly, the condition of actual user has been scrupulously made by M/s Nayara Energy Limited. He submits that the majority of documentary evidences submitted by the appellant before the adjudicating authority have been discarded by him on the pretext that the said documents were produced at the time of adjudication and the same were not available during investigation by DRI. He submits that without pursuing the authenticity of the documents, he brushed aside the same, which is clearly a violation of principles of natural justice. He alternatively submits that the appellant M/s Nayara Energy Limited have cleared the goods on the basis of proper SFIS Scrips which is not under dispute, therefore, if at all there is any violation of actual user condition, the demand at the most should have been raised against ....
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....The appellant have submitted various documents which prima facie show that the goods have been delivered to all the four vessels i.e. MV Badri Prasad, MV Mahavir Prasad, MV Chandi Prasad and MV Anassa. The adjudicating authority has discarded all the documents submitted by the appellant during the adjudicating process on the ground that these documents were produced first time before the adjudicating authority and same were not available during the investigation of the case. We find that even the documents evidencing the payment transaction against the supply of goods was also not considered by the adjudicating authority on the flimsy ground that the same were not signed. In this fact, we are of the view that it is not necessary that all the documents which are allowed to be relied upon for defense of the noticee must be made available during the investigation of the case. It is only after show cause notice is issued, the appellant make out its defense and for that purpose whatever documentary evidence are available with them are produced before the adjudicating authority. The adjudicating authority cannot reject those documentary evidence without verifying the authenticity of the ....