TaxTMI 
TaxTMI 
2026 (7) TMI 1681
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....mposed penalty on Appellants. Aggrieved by said order, appeals were filed before the Commissioner (Appeals) and Commissioner (Appeals) as per the impugned order dated 05.03.2018, confirmed the penalties imposed on Appellants. Aggrieved by said orders, present appeals are filed. 3. When the appeals came up for hearing, the Learned Consultant for the Appellant submits that the first Appellate authority issued a cryptic order without considering the grounds made by the Appellant before the Appellate authority. Learned Consultant further submits that the impugned order is unsustainable on the ground of invalid show cause notices and on merit also. Learned Consultant further submits that on the very same allegations, show cause notices were issued to M/s. DHL, Express and Adjudication Authority imposed penalty. When the appeals filed by the Appellants came up for hearing before the Hon'ble Single Bench on 03.06.2019, the Learned AR submitted that connected appeal filed by M/s. DHL is pending before the Tribunal and in the interest of justice, all the three appeals should be heard together. However, the said appeal was already taken up for hearing by this Tribunal and as per the Final....
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....consignments delivered by M/s. DHL to impose penalty on appellants without any admissible evidence. 7. Learned Consultant further draws our attention to the statement of Shri. Michael Raj operation Manager of M/s. DHL dated 12.3.2014 relied on by the department, he has clearly stated in answer to question No. 4 inter alia that "I further state that recently instruction has been issued by the department to carry out 100% screening of the goods and it is being followed". Surprisingly, the above statement regarding 100% screening of the parcels is intentionally omitted by the department to support their case against the appellants. In the statement, he has clearly stated that imported parcels are subjected to X-ray examination. In spite of these clinching evidences regarding the earlier parcels which were cleared in accordance with law, a finding is entered as noted above against the appellants. Thus, the Order-in-Original dated 05.09.2014 not only traversed beyond the scope of the show cause notice (SCN) but also entered a finding with pre-determined mindset to penalise the appellants. Further submits that though the details of 39 courier consignments shipped from Singapore is bro....
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....0) ELT 150 Belated corrigendum enhancing the scope of show cause notice is not sustainable. (f) Mukesh Dye Works-2006(196) ELT 237 (CESTAT)- Held that a corrigendum changing the basis of the show cause notice is a fresh show cause notice. 10. Learned Consultant further submits that even while issuing the Show cause notice, it shows pre-determination of the outcome of the order. In para 30 of the show cause notice, it is alleged that gold was admittedly concealed in all the previous 38 (thirty eight) consignments. This allegation is made even when the department admitted that those consignments were cleared to the respective consignees and verification reports pertaining to all the 39 consignments are awaited as to find out the whole truth, the following factors need to be verified: (i) Genuineness of the supplier's existence and DHL account No. (ii) Description, quantity transaction value of the goods consigned (iii) Documents like purchase orders, invoice airway bills, other correspondence if any with Indian consignees and remittances received along with Bank accounts in India for export of goods to India. 11. As regards the Appellant,....
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....l court for Economic Offences, Bangalore praying for a direction to take statement under videography and has retracted the earlier statements. After examining the wound certificate, the prayer of the appellant was allowed by the Hon'ble Court, and the department was directed to take further statement from the appellant under videography. Accordingly, a statement was taken under videography on 09.02.2015. As regards the evidentiary value of the statements relied by adjudication authority, Learned Consultant submits that since request for cross examination of witnesses was denied, it cannot be considered as admissible. All the 38 consignments were cleared to the respective consignees and no investigation report in respect of the earlier or present consignment was brought on record. There is no admission that gold had been consigned to M/s. Rotmac Distributor, Bangalore. The finding is therefore again beyond the scope of the show cause notice. As regarding statements of Shri. Sunil Kumar and Shri. Hemanth referred to therein are uncorroborated and further in their statements also, the reference is regarding the alleged dispatch of 38 (thirty eight) consignments earlier and there a....
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.... viii. Anil Pannalal Sarogi Vs. CCE 2009 (241) ELT 219 ix. Sai Kroipa Exim (P) Ltd, Vs. CCE - 2003(156) ELT 225 (Tri.) 15. Learned Consultant further submits that as per the Order-inOriginal dated 27.04.2017, finding is that Rotomac Distribution was a non-existent entity. Yet, the Order-in-Original dated 27.04.2017 has entered a finding that smuggling was carried out by said non-existent company. It is beyond comprehension by any reasonable person that a non-existent entity can indulge in smuggling activity or for that matter any activity. On such non-existent company, the Order-in-Original dated 27.04.2017 imposed penalty under sub-section 112(a) and 114AA. It is held that the penalty imposed on the non-existent company will be realised from appellant herein. Neither was there any proposal in the show cause notice to that effect, nor it is made known under which provisions of the law that penalty can be imposed on a dummy unit, and it can be realised from another person. However, in the order portion, there is no order that such penalty on behalf of M/s. Rotmac will be paid by the appellant herein. Learned Consultant submits that such finding shows that the adju....
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..... Namasivayam Sundar. The appellant has confessed to have introduced Abdul Rahim to A.V. Muralidhar. Namasivayam Sundar's own statement implicates him, the adjudicating authority and the First appellate authority have cogently brought out the pattern of conduct, involvement of A.V. Muralidhar, mens rea, and knowledge of illegality. Investigation records and statements recorded show that both the Appellant's were involved in smuggling of impugned 7 Kg gold also. 18. As regards Cross Examination, Learned Authorized Representative (AR) for the Revenue submits that this Hon'ble Tribunal, relying on the Orders in the case of, Hira Singh S/o S.H. Ramdhari Singh, Vs. Commissioner of Customs (Preventive) New Customs House, New Delhi, dated 13th February 2026 of Hon'ble High Court of Delhi and Commissioner of Customs, Bangalore Vs. Jyothi C. Jain and Ors. dated 13.08.2025 by the Hon'ble High Court of Karnataka (jurisdictional High Court) have upheld the denial of cross examination vide CESTAT Final Order No. 20173 20205/ 2026 dated 06.02.2026. Further Hon'ble High Court of Allahabad in their Order dated 16.01.2026 pertaining to Sarad Chand Agrahari @ Sharad Chand Agra....