TaxTMI 
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2025 (7) TMI 357
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....e Assistant Commissioner of Central Excise Division-II, Ludhiana for import/procurement of raw material indigenously without payment of duty as per Notification No. 53/1997-Cus dated 03.06.1997and Notification No. 1/95-CE04.01.1995; the appellant imported raw material Le. polyester yarn, polyester fabric. woollen yarn, synthetic waste, acrylic fiber, acrylic tow etc and procured raw material i.e. polyester yarn, polyester - Cotton / cotton yarn, acrylic yarn, polyester - cotton dyed fabric etc. indigenously, for manufacture of acrylic /woollen garments, polyester - cotton/cotton garments, polyester fabric, cotton/ cotton viscose fabric, woollen / acrylic fabric, polyester grey fabrics, acrylic blanket and acrylic top etc. (Appeal No. C/106/2010) 2.1. The Anti-Smuggling Staff of Customs Commissioner, Amritsar searched the factory premises of the appellant and residential premises of Shri Harbhajan Singh Sandhu, Managing Director, on 27/28.03.2002 and conducted physical verification of stock of raw materials and finished goods lying at factory premises by an eye estimation. Statements of employees were recorded, which were retracted subsequently. On conclusion of the investigation....
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....-Cus and final order No. 316320/2006-Cus dated 24.08.2006, dispensed the condition of pre-deposit, set aside the impugned order and remanded the matter to the Adjudicating Authority with a direction to decide the case afresh after affording an opportunity of cross examination of witnesses. In remand proceedings, Commissioner of Central Excise, Ludhiana, passed Order-in-Original No. 10/LDH/09, dated 25.06.2009, which is impugned in appeal No Appeal No. C/106/2010. Commissioner, vide this order, (i). confirmed custom duty amounting to Rs. 7,75,95,025 along with interest @20%; appropriated 20,00,000 already deposited (ii). Confiscated goods valued at Rs. 16,97,76,071 and as the goods are not available / traceable, imposed a fine of Rs. 40,00,000 in lieu of confiscation. (iv). imposed penalty of Rs. 7,71,95,025 on the appellant and Rs. 20,00,000 on Shri Harbhajan Singh Sandhu, Managing Director of the appellant. (v). imposed a penalty of Rs 10,00,000 on M/s Harman Fashioners Pvt Ltd; Rs. 15,00,000 on Shri Vinod Kumar Garg, Proprietor, M/s Anchal Exports; Rs. 10,00,000 M/s Adinath Textiles Ltd. (Appeal No. C/483/2009) 3. On the expiry of the extended perio....
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....bsp; Shri Sudhir Malhotra, learned Counsel for the appellants takes us through provisions of law and different Notifications issued in this regard. He submits that Commissioner of Customs, Amritsar not competent to issue show cause notice dated 03.07.2003, as Notification No. 30/1997-Cus (NT) dated 07.07.1997 as amended, only Commissioner of Central Excise, within their respective jurisdiction, as specified under Rule 2 of the Central Excise Rules, 1944 appointed as Commissioner of Customs; the Central Excise Commissionerate, Ludhiana was notified vide Notification No. 14/2002 CE (NT) dated 08.03.2002; it came into operation w.e.f. 25.10.2002 vide Notification No. 34/2002 CE (NT) dt. 01.10.2002. he would submit that in the instant case has been issued by Commissioner of Customs, Amritsar, who was not competent to issue show cause notice (to appellant 100% EOU) as per Notification No. 30/1997 Cus-(NT) dt. 07.07.1997 as amended vide Notification No. 18/2002 Cus- (NT) dt. 07.03.2002. It was the Commissioner of Central Excise, Ludhiana, the jurisdictional Commissioner of Central Excise as Commissioner of Customs as per ibid Notification No. 30/1997 Cus (NT) as amended; the show c....
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....ion 11 to Section 28 of the Customs Act. Hon'ble Delhi High Court in the case of Mangli Impex - 2016 (335) ELT 605 (Del.) held that the newly inserted sub-Section 28(11) does not empower officers of DRI and DGCEI to adjudicate show cause notices already issued by them prior to 08th April, 2011. While deciding the Special Leave Petition, Hon'ble Supreme Court - 2016 (339) ELT A49 (SC) stayed the decision of the Hon'ble Delhi High Court in the case of Mangli Impex. Learned Counsel further submits that Hon'ble Supreme Court in the case of Cannon India - 2021 (376) ELT 3 (SC) held that ADG, DRI was not a proper officer to issue show cause notice under Section 28 ibid. 8. Learned Counsel further submits that there is no notification under Section 2,3,4,5 & 6 of the Customs Act, authorizing Central Excise Officers as Customs Officers; further Section 151A of the Customs Act, which empowers the Board to issue orders, instructions and directions, as it existed before 08.04.2011, did not empower the CBEC to issue orders, instructions and directions on the issues other than the classification of goods or with respect to levy of duty; therefore, the circulars issued by the Board, givin....
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....ot jammed has been ignored warehouse license was suspended on 20.12.2002 without supplying any reasons; even after the suspension of the IEC was revoked by Development Commissioner, warehousing license was not revoked despite several requests. * Department did not conduct proper enquiries and no physical stock was taken, stock recorded as on 27.03.2002 was only and eye estimate. * The show cause notice is time barred; whereas the imports were in the period November 2001 to March 2002 show cause notice was issued on 07.07.2006 beyond the period prescribed under Section 28; no proof of willful suppression etc. with intent to evade payment of duty has been brought. * Accordingly, the confiscation proposed and imposition of penalties are not warranted. 11. Learned Counsel further submits that the show cause notice has been issued on the basis of assumptions and presumptions; though, it is alleged that raw material imported in terms of Notification No.53/97 were not utilized for the purposes for which it was imported but was diverted or sold in the domestic market; however, the show cause notice does not mention or refer to any particular bill of entry; therefore, the show cause ....
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.... show cause notice whereas duty of Rs. 9,03,999/- has been confirmed; * Commissioner finds that the Show Cause Notice works out duty forgone on a quantity of 1984415.900 Kg. Of acrylic fibre/ tow/ tops, which is a misplaced demand. He records that the appellant submits that they have imported 1601779.700 Kg. of acrylic fibre/tow/tops during the financial year 1997-98, 200001 & 2001-02; demand cannot exceed duty on this quantity; appellants submit that 226586 Kg had already been consumed/accounted for prior to the visit of the Customs officers; noticee had to justify the disposal of 1601779.700 Kg. * Commissioner finds that the custom duty amounting to Rs. 3,58,54,192, interest @20% per annum, as against Rs. 5,23,98,469 proposed, is now demandable on 1375193.700 kg of raw material; * Adjudicating Authority finds that custom duty evaded is Rs. 9,81,42,025 (para 3.60), whereas in the operative part confirms duty of Rs 7,71,95,025/-. 15. Learned Counsel for the appellants submits that interest has been incorrectly demanded under section 28AB and penalty incorrectly imposed under section 114A of Customs Act, on element of duties other than basic custom duty. He submits that....
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....g the hearing that he may be permitted to submit written submissions on the grounds of appeal. Accordingly, permission was granted. Learned Authorised Representative in his written reply submitted comments on the grounds of appeal no. 106/2010, extracting paras from the impugned order, denying all the allegations levelled against the impugned order. He submits that the Adjudicating authority has analyzed all the evidence properly and gave allowance to whatever was due to the appellants correctly; the appellants could not produce evidence to substantiate their claims on various points; averments of the appellants are after thought and misleading. He submits as summarized in the forthcoming Paras. 19. Learned Authorised Representative submits that the appellant had not produced any record/data regarding quantity lying as work in progress during search as well as before the adjudicating authority; submissions made by appellants are only after thought, to mislead the proceedings before appellate authority. He submits, regarding Job work & Evidence of Diversion of Raw Materials/goods, shown as removed to M/s Adinath Textiles, that the adjudicating authority observed t....
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.... his letter HQAE No 46/2002 dated 29.05.2003, wherein, it is specifically mentioned that vehicles mentioned in the transport documents proved to be two wheelers, three wheelers, nontransport vehicles; it is evident that the appellant could not produce satisfactory evidence in respect of remaining consignments. 22. Learned Authorised Representative submits, in addition, that Show Cause Notice dated 03.07.2003 and further corrigendum dt 20.11.2003 were issued by the Commissioner of Customs, Amritsar, making the appellants answerable to the Commissioner of Central Excise, Central Excise Commissionerate, Rishi Nagar, Ludhiana, in compliance to CBEC letter dated 13.10.2003 issued under F. No. 305/138/2003-FTT; It is evident that proper officer (Commissioner Central Excise, being a jurisdictional Custom Officer as per Notification No. 30/1997 Cus (NT) dt. 07.07.1997 as amended vide Notification No. 18/2002 Cus (NT) dt. 07.03.2002). Commissioner, Central Excise-Chandigarh-I adjudicated the demand notice dt 03.07.2003 vide Order-in- Original No. 76/CE/2004 dated 25.10.2004, as assigned by CBEC vide Order No 07/2004-CE dated 25.03.2004 issued under F. No. 208/8/2004-CX.6 ....
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....e. 25. The appellant submits that consequent to the remand order by the Bench, learned Commissioner has given substantial relief by extending the benefit of the Notifications No.02/95-CE dated 04.01.1995 and 08/97-CE dated 01.03.1997; however, he has seriously erred in dealing with the submission made by the appellants and concluded that the appellants have evaded duty by diverting the goods into domestic market without bringing in an iota of evidence. Learned Commissioner relied upon the statements of various persons viz. Shri P.R. Chovatia of M/s Devyani Processors, Shri Ramesh Kumar of M/s Jai Bhawani Cargo, Shri A.K. Kapoor of M/s Adinath Textiles etc. Learned Commissioner committed a serious error in not taking into account clearances made to M/s A.S. Enterprises holding that the warehousing license was not in operation being suspended; learned Commissioner relied on the statements of the persons like Shri P.R. Chovatia of M/s Devyani Processors, Shri Majhabella Khan, Proprietor of M/s Philtex Prints and Shri Vinod Kumar Garg of M/s Anchal Exports even when they failed to turnup for the crossexamination and relied upon contradictory statements of Shri Ramesh Kumar, whic....
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....procedural mistakes is incorrect. 27. Learned counsel submits that they have supplied 281 consignments of Grey fabric to M/s Devyani Processors Pvt Ltd; learned adjudicating authority relies on the statement of Shri P.P. Chovatia, Director of Devyani Process Pvt Ltd; Shri Chovatia did not appear for cross examination; Shri Ramesh Kumar Jain of M/s J Bhawani Cargo Carriers, the transporter stated that they transported all the consignments to M/s Devyani Process; Department does not adduced any evidence to counter the statement of Shri Ramesh Kumar Jain; therefore the adjudicating authority incorrectly confirmed the demand of duty thereto without reference to any bill of entry. 28. In respect of supplies to M/s Philtex Prints, learned authorised representative submits that re-warehousing certificates were available for only 27 consignments out of 106 consignments, whereas learned adjudicating authority has given a finding that the appellants had re-warehousing certificates for 62 consignments. He submits that as the matte is very old, the appellant cannot show any documents now to substantiate 17 consignments dispatched to M/s Philtex Prints; he states that the appellants und....
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.... it existed before 08.04.2011. He relies on Nathalal Manganlal Chauhan - 2020 (35) GSTL 145 (Guj.) and Chief Information Commissioner - 2012 (286) ELT 485 (SC). 31. We find that the Learned Counsel for the appellants heavily relies on the cases of Canon India and Mangli Impex. We find that the issue as to whether officers of DRI/DGCEI are competent to issue a demand Notice under Section 28 of the Customs Act,1962. The dispute is set to rest by the Hon'ble Apex Courts decision in Review in the case of M/s Canon India and the retrospective amendment carried out in 2022. Moreover, as the issue in the instant case is not the subject matter of the cases cited by the Learned Counsel, we are not inclined to analyse the issue vis a vis the above cases in details. Learned Authorized Representative for the Department, submits that the ground of jurisdiction has been taken for the first time before CESTAT; it was not agitated before the Commissioner and therefore, in view of Hon'ble Supreme Court in the case of Warner Hindustan - 1999 (113) ELT 24 (SC), the same cannot be permitted. We find that the argument of the Learned Authorised Representative cannot be accepted as the issue raise....
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....n over export-oriented unit and not Customs House where goods are assessed by into bond bill of entry for the purpose of being warehoused. This is supported by the decision of the five Member Bench in the case of Ferro Alloys Corporation Ltd. v. C.C. (Appeals), Bhubaneswar - 1995 (77) E.L.T. 310. The relevant portion of the order are reproduced below: "The Tribunal has held in these two decisions that in a situation of clearance of warehoused goods, the jurisdiction for raising demand for short levy or refund on reassessment will be with the proper officer granting ex-bond clearance. This view of the Tribunal finds support in the Madras High Court decision in the case of Collector of Customs, Madras v. Tungabhadra Fibres Ltd., reported in 1994 (71) E.L.T. 655 (Mad.). The High Court had held that the assessment of goods into bond on a warehousing Bill of Entry is only tentative and such assessment being made only for the purpose of execution of warehousing bond, is not conclusive. Para 6 of the Madras High Court decision reads as follows: * * * * * * * * Therefore, the reservations expressed by the referring Bench in the present case, about the aptness of the Ferro....
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....e Bill of Entry is the basic document vide which the quantity imported and warehoused and the duty foregone etc. can be ascertained. Demanding of any duty without reference to any authentic documents, more so, demanding customs duty on the imported raw material is not only without any basis but also is not permissible. On the single point alone, the show cause notice falls flat. 35. We further find that in a rare kind of show cause notice; Revenue issued a show cause notice dated 28.09.2007 on the basis of the stock ascertained on 27.03.2002. We find that Revenue has not made out any efforts to find out relevant factors such as whether the bond period was liable to be extended and was applied and as to whether the Development Commissioner has not extended the bond period; whether the export obligation has been fulfilled by the appellants and what was the actual stock remaining at the time of issuance of show cause notice. We further find that no steps appeared to have been taken to ascertain whether the unit was de-bonded. The only premise on which the impugned show cause notice and the order appeared to have proceeded is the fact that the bond period was over. Further, we f....
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....impugned order based on the same cannot be sustained. 37. We find that the appellants submitted that the appellants have made several requests to the Deputy Commissioner of Customs to revoke the suspension of IEC; the Development Commissioner revoked the suspension on 08.04.2003; in spite of the repeated requests by the appellant, suspended warehouse license was not revoked. We find that it is not forthcoming as to any action was taken by the Department on these applications. We find from the records of the case that Revenue kept silent for all the years and issued a show cause notice on one fine day alleging clandestine removal on the basis of the stock improperly ascertained five years ago. Further, we find that the appellant submits that due to the long inaction on the part of the Revenue, the machines got jammed; the raw materials work in progress and capital goods were damaged/ destroyed due to natural conditions over the years, were not considered. We find that a reasonable opportunity should have been given by verifying the claims of the appellants without doing so, it is not open for the Department to confirm the duty liability. Thus, the issue No.(ii), framed ....
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....refore, the argument that merely because the respondent has executed a B-17 bond they would fall outside the purview of Section 11A is illogical and irrational. One cannot interpret the law in such a way so as to make the provisions of law redundant." 40. We find that Hon'ble High Court of Bombay, on an appeal filed by the Revenue against the above decision, upheld the decision of the Tribunal as above. "4. These very facts were, therefore, appreciated by the Tribunal and in arriving at the conclusion that the show cause notice and the proceedings in pursuance thereof were barred by limitation. It may be that the Tribunal dealt with an incidental contention of the Revenue. Merely because that incidental question has been dealt with, we cannot loose sight and shift the focus from the main question. The main question was the applicability of Section 11A and invocation of the extended period thereunder. The extended period could not have been invoked in the absence of the requisite ingredients and to be found in Clauses (a) to (e) of sub-section (4) of Section 11A of the Central Excise Act, 1944. This is clearly a finding of fact and reached in the backdrop of the....
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....ut evidence of the disposal of the said goods. We hold that the same analogy, in this case too, clandestine removal cannot be alleged for the reason of shortages, without presenting any evidence for clandestine removal/disposal of the goods in domestic market. Appeal No. 106/2010 43. Now Coming to the question no (iv), framed at Para 29 above, as to whether the demand of Customs duty, on various Counts, confirmed on the appellant, in respect of Appeal No. 106/2010 is maintainable, We find that most of the arguments made in respect of Appeal No C/483/2009, as far as the Show Cause Notice being vague; not giving the details of imports of bill of entry wise and dependence on the stock taking done in a cursory and unscientific manner are concerned, are also squarely applicable to Appeal No. C/106/2010. Further, we find that there is merit in the argument of the appellants that the physical verification of stock was not carried out properly and no conclusion can be drawn from the same. The Revenue alleged that on the day of search/stock taking by the officers on 28/03/2002, 67640.470 Kg of polyester yarn, 35127.300 Kg of synthetic waste, 27030.400 Kg of polyester fa....
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....tiles Ltd, appellants have only created papers to show clearance and have diverted the same in local market and thus, evaded customs duty of Rs.15,48,000 and Rs.24,85,967 respectively. 44. We find that the appellants also submit that the imported material has been duly utilized in the manufacture of finished goods and were duly exported; even if it is assumed that the appellants have diverted the same in the domestic market, they are liable to pay duty under Section 3 of Central Excise Act and not under proviso to Section 3 as held in M/s Sam Spintex - 2004 (163) ELT 212 and M/s Himalaya International - 2003 (154) ELT 680 (LB) and M/s Panchsheel Soap Factory - 2003 (156) ELT A382 (SC) and demand of customs duty is not sustainable; they also submit that majority of their raw material were from DTA/ 100% EO Units and therefore, benefit of Notification No.08/97 is available to the appellants. Now, we proceed to evaluate as to how Learned Commissioner has dealt with the allegations, defence of the appellant and the law. Findings on shortages; Removal for Job-wok/Export 45. As far as the demand of duty on various shortages, removal for job work/ export is con....
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....ally and was only an eye-estimation. He compares the shortages with the figures available in the input register and form-IV, accepts a few contentions of the appellant and discards others without any evidence and without any justifiable reason. However, as requested by the appellant and as directed in the remand order, commissioner extends the benefit of the notifications 2/95 and 8/97. 47. We find that the Commissioner accepts the contention of the appellant that imported of polyester yarn of 5000 kg and 21000 kg was recorded twice in the register; he accepts that the entries are on different dates 5000 Kg on 30.04.2001 & 7.5.2001 and 21000 Kg on 30.01.2002 and 3.3.2002 as provided by the appellant. In respect of synthetic waste, sent on Job-work basis to M/s Gambhir Textiles and Spinning Mills and to M/s Adinath Textiles, he accepts the version of the appellants but in other respects he does not accept; though he obtains and accepts a report dated 21.01.2009 from the Assistant Commissioner of Customs, Amritsar to the effect that the shortages arrived at were correct, learned Commissioner accepts the contention of the appellant that M/s Adinath Textiles have paid the ....
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....ed allegations in the Show cause Notice. Moreover, in this case also diversion is not proved with any evidence is placed on record. Therefore, the demand of duty is not sustainable. 51. We find in respect of the supplies to M/s Anchal Exports, Merchant exporter, the adjudicating authority relies on the report sent by Nhava Sheva Customs House that exports claimed to have been made by M/s Anchal Exports, vide Shipping Bills No. 314291, 314292, 314293 and 314294 all dated 09.01.2002, were bogus. We find that the Adjudicating Authority observes that Shri Vinod Kumar Garg Proprietor of M/s Anchal Exports, K-3/4 Textile Colony, Ludhiana had connived with and abetted M/s Royal Industries Ltd, Ludhiana in evading Customs duty of Rs. 46,55.122; he had diverted bonded goods into domestic market, which he was supposed to export on behalf of M/s Royal Industries, Ltd. Ludhiana; to show export of goods, he submitted bogus documents like Bills of lading, shipment certificates, remittance certificates from the banks; he deliberately tried to mislead inquiry by giving false statements. We fail to understand as to how the demand can be confirmed against the appellants for failure on the par....
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....anner; it was only an eye estimation; work in progress was not taken in to consideration. The officer accepted during Cross examination that it was an eye-estimation. (ii). Statement of Shri Sushil Kumar Sharma was relied upon but the same was retracted. Learned Commissioner has not examined Shri Sharma under the provisions of Section 9(D) of the Central Excise Act,1944. (iii). The shortages alleged and discussed in the impugned order are not consistent. While the Commissioner concludes at Para 3.60 that the duty evaded by the appellants was Rs.9,81,42,025/- in the order portion he confirms duty of only Rs.7,71,95,025/-. (iv). The investigations conducted did not provide any evidence to prove that the appellants have diverted the goods in to local market. No enquiries were conducted in that direction. Therefore, clandestine removal can not be alleged on the basis of stock-taking which was done only on eye estimation. (v). Learned Commissioner has passed the order accepting certain contentions of the appellants on shortages in some cases and rejecting the same on other cases, as discussed above, without giving any commensurate reason and analysis. (vi). The Ad....
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....tral Excise Act or the Customs Act as they apply in relation to proceedings before a Court. What, therefore, follows is that a person who makes a statement during the course of an inquiry has to be first examined as a witness before the adjudicating authority and thereafter the adjudicating authority has to form an opinion whether having regard to the circumstances of the case the statement should be admitted in evidence, in the interests of justice. Once this determination regarding admissibility of the statement of a witness is made by the adjudicating authority, the statement will be admitted as evidence and an opportunity of cross-examination of the witness is then required to be given to the person against whom such statement has been made. It is only when this procedure is followed that the statements of the persons making them would be of relevance for the purpose of proving the facts which they contain. *********** 28. It, therefore, transpires from the aforesaid decisions that both section 9D(1)(b) of the Central Excise Act and section 138B(1)(b) of the Customs Act contemplate that when the provisions of clause (a) of these two sections are not applicable, then t....
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....ms duty of Rs.2,53,23,976/- is recoverable from the appellants. Commissioner relies on the statement of Shri P.P. Chovatia, Director of Devyani Process Pvt Ltd. However, Shri Chovatia did not appear for cross examination. Shri Ramesh Kumar Jain of M/s J Bhawani Cargo Carriers, the transporter stated that they transported all the consignments to M/s Devyani Process. It is seen that the statements of Shri P.P. Chovatia, Director of Devyani Process Pvt Ltd and Shri Ramesh Kumar Jain of M/s J Bhawani Cargo Carriers, the transporter are contradictory to each other. The adjudicating authority did not specify the reasons as to why among the two contradictory statements, one has to be accepted and the other to be discarded. This becomes more important as the adjudicating authority relies did not examine Shri P.P. Chovatia, Director of Devyani Process Pvt Ltd and Shri Ramesh Kumar Jain of M/s J Bhawani Cargo Carriers. 59. We find further that the appellants contend that they have received payments for all the consignments. It was also alleged that some of amounts paid by Shri Chovatia to appellants were towards advances as confirmed by Shri Sushil Kumar Sharma, employee of the ....
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....cuments are non-transport vehicles such as two-wheelers, three-wheelers etc; the report was obtained without mentioning the actual numbers of the vehicles; it is not specifically in respect of the supplies made by the appellants; the numbers of the vehicles referred to the RTO were different from those mentioned in the documents showing removal of consignments by the appellants to M/s Philtex; moreover, the report is also not relied upon by the show cause notice. We find that the learned authorised representative submits that re-warehousing certificates were available for only 27 consignments out of 106 consignments, whereas learned adjudicating authority himself has given a finding that the appellants had re-warehousing certificates for 62 consignments. We find that the learned Counsel for the appellants fairly submits that, as the records are very old, they are not in a position to submit the re-warehousing Certificates in respect of 17 consignments and as such they undertake to pay duty on those 17 consignments. Interestingly, Commissioner calls for a report from Customs Amritsar, who reported that no consignments appear to have been received by M/s Philtex. However, he proceeds....