TaxTMI 
TaxTMI 
2025 (6) TMI 204
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....9 dated 25.03.2019 of the Commissioner of Customs (Preventive), Trichy involving identical facts and being connected to each other are being taken up together for common disposal. 1.3 The facts in brief culled out from the Records, Grounds of Appeal and submissions of the Appellants are as follows. 2.1 Shri R.V. Shanmugam, one of the appellants in this proceeding is a Proprietor of M/s. Ayyappan Industries, which deals with import of steel and export of Stainless Steels Articles and also reported to be a trader in local market. The other appellant, namely, Shri. Manish Kumar Jain, (Appellant 2) is a Proprietor of M/s. Parmar Exports who is engaged in the business of export of stainless-steel articles for various exporters on commission basis. 2.2 The exporters involved in these appeals are namely; i. M/s. Samy Metal Industries, Proprietor Mr. Packirisamy ii. M/s. J.S.Babu Inc., Proprietor JS Babu iii. M/s. Ayyappan Industries, Proprietor Mr. R.V. Shanmugam. 2.3 It appears that the above exporters filed the following shipping bills under the claim of drawback under Section 75 of Customs Act 1962 for export of Stainless Steels Articles at ICD Ir....
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....oned as Section 113(i) and 113(ii) instead of Section 113 (i) and 113(ia). 2.6 Accordingly, the Show Cause Notice No. 63/2011 dated 29.09.2011 was issued to the above 3 exporters, including the first and the second appellants and also to Shri. Arun Kumar proposing the following: - i. To reject the drawback claimed in respect of the 39 shipping bills. ii. To hold the goods covered under the said 39 shipping bills liable for confiscation under Section 113(i) and 113(ia) of the Customs Act, 1962. iii. To impose penalty under Section 114(iii) for the acts of misdeclaration violating the provisions of 50(2) of Customs Act, 1962 read with Rule 12 (1) of the Drawback Rules. iv. To impose penalty under Section 114(iii) and Section 117 on the proprietors of the above exporting entities, including the first and second appellant herein, Shri. Rajan (CHA) and Shri. Arun Kumar (officer on duty at ICD, Irugar). 2.7 In response to the Show Cause Notice, both the appellants herein submitted detailed replies. After due process of law, the impugned Order-in-Original No. 01/2019 dated 25.03.2019 was passed in terms of which the Commissioner of Customs (Preven....
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....cise-Jaipur [2025 (3) TMI 738-CESTAT NEW DELHI] dated 07.03.2025. 4.3 It was also informed that out of the 41 shipping bills in dispute, proceedings were initiated with respect to 2 shipping bills bearing SB No. 1109 & 1110 dated 13.07.2005 vide SCN dated 06.05.2008 and got adjudicated vide OIO No. 05/2008 dated 21.05.2008. 4.4 In the impugned proceedings as well as in the SCN/OIO referred supra, the entire set of evidences/allegations emanated from the same proceedings/investigation and that no new evidence/statement is produced in the current proceedings which are not part of the above referred SCN/OIO. Thus, he would submit that, considering the breach of limitation to issue the SCN as well as the extraordinary latches in delay in the adjudication would render the entire proceedings void ab initio. 4.5 The Ld. Advocate has contended on merits by submitting that the appellants have not indulged in activities resulting in any offence under the Customs Act rendering them liable for penalty under Section 114 (iii) of the Customs Act. 4.6 He would argue that it is needed to ascertain a crucial fact as to whether there has been any excess claim of drawback in the instant c....
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....bricated at the time of export. On the contrary, he would submit that, the learned adjudicating authority observes in Para 7 and 28.3 of the impugned OIO as under: - "07. The main issue is whether there exist two different sets of Shipping Bills, for the same Shipping Bill Number, with same date for the export carried out by these companies through ICD, Irugur and that the same were filed under Drawback Scheme. From the Show Cause Notice, it is evident that the investigation could obtain only copy of the pages of Shipping Bil Register and Security Register during their visit. Further it was informed that the Superintendent of Customs, ICD Irugur was addressed by the Investigation agency on 25.07.2005, to furnish copies of the Shipping bills filed by the exporters of steel utensils and the DC in-charge of that ICD was addressed on 28.07.2005. From the SCN, it is clear that the Original and Duplicate of the Shipping Bills and other related records which ought to have been available with the Customs/custodian at ICD, Irugur, was not made available to the Investigating Agency. The copies of Shipping Bills that ought to have been available with the exporters were also not recov....
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....i Manish Jain of Parmar Exports called him to his office at Mint Street, Chennai and he visited the office situated in the first floor. x) Out of about 40 Shipping Bills filed at ICD, Irugur, Coimbatore, Manish gave him 32 Shipping Bills and asked him to prepare one copy of shipping bill by entering those details in empty shipping bills and prefixing 2 in quantity column and 5 in value column. All the 32 Shipping Bills were in respect of the 3 exporters other than Parmar Exports and were empty Shipping Bills and did not contain any signature. During the preparation of the Shipping Bills, Shri Shanmugam was also with him. This work was completed in about 5 hrs time. xi) Immediately on preparation of the above said 32 Shipping Bills, he handed over the same to Manish Jain on the same day. Further, copies of all the bills filed at Irugur ICD, were kept by Shanmugam. ...." 4.9 He would further argue that, both the SCN and OIO has also implicated the second appellant, as the de facto owner of M/s. Elles Trading FZE and M/s. Ahamed Hassan Darwin Trading, Dubai and thus proceeded to impose penalty under Sec. 114 (iii) of the Customs Act basing on the statemen....
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.... to para 26 of the impugned Order-in-Original No. 01/2019 dated 25.03.2019 to argue that there was enough evidence of fabricated documents to avail undue drawback which is reproduced below: - "26. As already discussed, I find that there is substantial evidence to prove that there were two different set of documents (showing different values) made for each shipping bill filed by these companies at ICD, Irugur, in order to avail undue drawback. Further, the overseas enquiries revealed that there were huge variations in the value declared in the shipping bills at the time of export and the bills of entry filed overseas at the time of import which shows that the value of the consignments covered by the impugned shipping bills had been grossly mis-declared. Hence, I conclude that the goods exported by the above three companies, Viz M/s. Ayyappan Industries, M/s J.S Babu Inc., and M/s. Samy Metal Industries vide the Impugned Shipping Bills are liable for confiscation under Section113(i) and (ia) of Customs Act, 1962 and accordingly penalty is also imposable on the Shri. Manish Kumar Jain and Shri N. Rajan under Section 114 (iii) of the Customs Act, 1962. Since the above persons ....
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....gal and proper. Though Section 124 of the Customs Act does not specify time limit, the same cannot exceed the maximum time of limit for 5 years prescribed under Section 28 of the Customs Act, 1962. The relevant portion of the Order is extracted below: - " 6.3 It was being contended that Section 124 does not prescribe any time-limit for proposing confiscation of goods and imposition of penalty. It is to be seen that show cause notice has been issued without referring to Section 124 of the Customs Act. Even otherwise, proposal for confiscation relates to allegation of undervaluation with consequent to evasion of customs duty which requires to be demanded in terms of Section 28 of the Customs Act. Section 28 prescribes issue of show cause notice within maximum five years from the relevant date, in this case, the date of payment of duty namely 21-1-1999. The proposal for confiscation and imposition of penalties are directly linked to demand of differential duty invoking extended period of limitation. Even though Section 124 does not specify a time-limit, the same cannot exceed the maximum time-limit of five years prescribed under Section 28 of the Customs Act. This view is sup....
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....judicated for so long. Repeated placing and removing from the call book is not a valid justification for non-adjudication of the impugned SCN for about 15 years. Moreover, the gaps between the said periods is also inexplicable. Hearing notices have been given to the Petitioners but there is no reason for non-adjudication of the impugned SCN for long period. Further, the Co-ordinate Bench of this Court in Vos Technologies (supra) has rejected the argument of the Customs Department that the delay in adjudication occurred solely due to the repeated request from the assessee for additional documents. The relevant paragraph from the said judgement is extracted hereunder: "36. A stark example of a failure to conclude the adjudicatory process with expedition is represented by pursuant to the issuance of a SCN on 23 December 2006 and saw the passing of a final order on 08 February 2024. According to the respondents, although approximately 80 dates of personal hearing are stated to have been fixed between 2008 to 2023, the noticees regularly sought adjournment on one pretext or another and failed to appear and participate in the hearings. However, we find that in this particular ca....