TaxTMI 
TaxTMI 
2025 (9) TMI 1534
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....sion-V, Surat-1 subject to the fulfilment of certain conditions. In pursuance of this permission, the appellant unit had executed a bond with the Jurisdictional Deputy Commissioner of Central Excise & Customs, Ankleshwar, wherein they have, Inter alia, undertaken to observe all the provisions of the Customs Act, 1962, Central Excise Act 1944 and the Rules and Regulations made there under, failing which they had undertaken to pay the Customs and Central Excise duties along with the interest on the same, on demand being so made. 1.1 The Directorate of Revenue Intelligence, Regional Unit Surat received a specific intelligence to the effect that the appellant unit had shown clearances of the goods against fake Advance Licences / Advance Release Orders (AROs) to various fictitious / non-existent firms based at Morabad. Intelligence further suggested that the appellant unit had diverted the goods in domestic market without payment of duty and showed such clearances against fake Advance Licences / Advance Release Orders (AROS) on paper only, in order to fulfil their export obligation. Preliminary verifications with Office of the Joint Director General of Foreign Trade, Moradabad, had c....
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....with the assistance of Shri Soyeb Musa Tumbi, Power of Attorney holder of the appellant unit: that before Contepun 27.11.2000, their unit was functioning as a proprietorship concern and after that the same was converted into a partnership firm: that, thereafter, the entire responsibility was transferred on Shri Yahya Haji Usman Chamodia & Shri Rafiq Haji Usman Chamodia. He admitted that at the time of procurement of advance licence/AROs, he was aware that no goods were to be physically sent to Moradabad and the same was obtained so as to complete deemed export facilities on paper only. 1.4 Statement of Shri Shoab Musa Tumbi, Power of Attorney holder of the appellant unit was recorded on 09.01.2004 under Section 108 of Customs Act, 1962 wherein he stated, inter alia, that since the inception of the said unit he was working as power of attorney holder and was looking after the entire work Including the work pertaining to import, export, production etc. of the appellant unit along with the Proprietor and Partners of the said unit. He admitted that no goods were ever physically sent to Moradabad and the raw material le. Imported POY/PFY) to be used in the manufacture of the said qua....
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....arbhai Ghaniwala and Shri. Shoab Musa Tumbi (Appellant No. 3), the same on appeal were uphled by the appellate authority in the remand proceedings also. Aggrieved by the order, the party i.e. Soabd Musa Tumbi and Shri Zahid Haroon Latiwala partner of M/s. Millant Fibers are before this Court. 3. Opening the arguments, Learned Advocates while not pressing for the point of D.R.I not being ―proper officer‖ again presses for point of violation of natural justice, stating that no inspection of documents for proper hearing despite CESTAT order was provided to them. It also pleads that composite penalty is not permissible under law and the same cannot be imposed both on firm as well as partners simultaneously and that the goods were confiscated beyond the scope of show cause notice and that the findings are unsupported, the same being based on post confessional statements without corroboration by the recipients and in any case, both the lower authorities erred in holding that the evidence was sufficient. As per his submission, the evidence being uncorroborated is insufficient or is not admissible as the same was based on coerced/confessional statements and for its purposes ....
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....The adjudicating authority had also issued addendum to the said OIO on 07.03.2016 which was sent to the appellant by e-mail on 21.03.2016. Aggrieved by the said Order-in-Original, the appellant had preferred first appeal to the Commissioner (Appeals) who also uphold the order of the adjudicating authority. 6. That the appellant was an Export Oriented Unit and was engaged in the manufactures of Crimped Yarn & Twisted Yarn from both indigenous and imported raw materials during the period of dispute i.e in the year 1999- 2000. The company was duly registered as EOU after obtaining permission from the Development Commissioner, Kandla as well as requisite permission from the Customs Authorities. On 22.011.2000 DRI conducted a search at the factory and finally alleged that the two consignments of imported Polyester Yarn (POY) totalling 27, 383 kgs and imported while Bill of Entry No. 12051 dated 28.10.1999 and of Bill of Entry No. 22 dated 01.01.2000 were not supplied to the intended recipient M/s Shiv International, Moradabad as deemed export as was claimed by them. The Department alleged that these goods were cleared into the Domestic Tariff Area (DTA) for cash payment. The order wa....
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....dence on account of failure to meet the statutory requirements. The Section 138B of the Customs Act, 1962 has been reproduced below for ready reference: "Section 138B. Relevancy of statements under certain circumstances. (1) A statement made and signed by a person before any Gazetted Officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to a....
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....y invoke clause (a) of Section 9D(l). In all other cases, if he wants to rely on the said statement as relevant; for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who, had.. made, the . statement; examine him as witness before him in the adjudication proceeding, . and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitted in the interests of justice. In fact; Section 138 of the Indian Evidence Act, 1872, clearly sets out the sequence of evidence, in which evidence-in-chief has to precede cross-examination, and cross-examination has to precede re-examination. It is only, therefore,- (i) after the person whose statement has already been recorded before a Gazetted Central Excise officer is examined as a witness before the adjudicating authority, and (ii) the adjudicating authority arrives at a conclusion, for reasons to be recorded in writing, that the statement deserves to be admitted in evidence, that the question of offering the witness to the assessee, for cross-ex....
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....ments made by transporters of goods and that too, not of the drivers who transported the goods but of the owners of such company, who were not involved in the physical transport of the goods. To say the least, the impugned order is solely based on the statements which have no precise content. ".......it would be clear that none of these grounds is substantiated by concrete or credible evidence. Mere reliance on the statements not corroborated by tangible evidence cannot be the basis for confirmation of a demand of high demand as in the present case......" 6.12 A similar view was taken by the Hon'ble Gujarat High Court in the matter of COMMISSIONER OF CENTRAL EXCISE Versus SAAKEEN ALLOYS PVT. LTD. [2014 (308) ELT 655 (Guj.)] - "10. All the appeals are based predominantly and essentially on factual matrix. The Tribunal elaborately and very correctly dealt with the details furnished by both the sides and rightly not sustained the demand of Rs. 1.85 Crores, which had no evidences to bank upon. Confessional statements solely in absence of any cogent evidences cannot make the foundation for levying the Excise duty on the ground of evasion of tax, much less the retrac....
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....ties. The matter pertains to the year 2000 and after 25 years, it appears that the case has not progressed as was required as per law. In the first round of litigation, this Bench of the Tribunal vide Order No. A/11552- 11554/2013 dated 15.11.2013 had asked both sides to co-operate. The department was directed to give opportunity of hearing to the appellants before deciding the issues a fresh in de novo proceedings and afford all the relied upon documents or their inspection to the appellant. It appears that the adjudicating authority had directed the appellant to obtain relied upon document from DRI regional unit, Surat. The DD DRI it is on record vide letter dated 4th January, 2016 (i.e. 3 years after remand order) copies of the relied upon documents as were mentioned in Para 30 of the show cause notice dated 28.02.2004. This letter of forwarding is dated 04.01.2016. Thereafter, the very next day that is on 05.01.2016 personal hearing has been afforded by the adjudicating authority followed by two successive hearing on short duration on 12th January, 2016 and 19th January, 2016 i.e. in quick succession. And thereafter, after counting three opportunities, matter was decided ex-par....