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TMI Blog2010 (3) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... irman of a group of company) and Shri Suresh Pal Gupta (employee) including Shri Dilip F. Mehta (employee) and Shri Ashok Pathak (freight and forwarder) contributed for the cause of defrauding Revenue by various manipulations and malicious design and they were conduit to cause evasion of duty for which they do not deserve any consideration for waiver of penalty imposed on them. X X X X Extracts X X X X X X X X Extracts X X X X ..... upees One Crore Thirty Four Lakhs Eighty Thousand and Twenty only) in respect of B/E No. 361632 dated 19-6-2003 was recoverable from M/s. Maya Trading Co. and Shri Ram Kishan Tiwari, the Proprietor of M/s. Maya Trading Co., under Section 28 of the Customs Act, 1962 read with proviso to the Section 28(1) of the Customs Act, 1962 and further read with Clause 8 of Sub-Section 9 of Section 9A of the Customs Tariff Act, 1975. (4) Confiscation of 6,00,000 pcs. of bearings imported vide Bill of Entry No. 361632 dated 19-6-2003 under Section 111(d) & (m) of the Customs Act, 1962 was made. As the goods were not available for confiscation, fine of Rs. Four lakhs was imposed in lieu of confiscation on Shri Ram Kishan Tiwari, the Proprietor of M/s. Maya Trading Co. (5) Customs duty amounting to Rs. 11,58,724/- (Rupees Eleven Lakhs Fifty Eight Thousand Seven Hundred Twenty Four only) in respect of B/E No. 158099 dated 23-5-2003 was recoverable from M/s. Devsons and Shri Raju, the Proprietor of M/s. Devsons under Section 28 of the Customs Act, 1962 read with proviso to the Section 28(1) of the Customs Act, 1962. (6) Confiscation of 5,90,940 pcs. of bearings imported vide Bill of Entry under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and Shri Surya Narayan Mishra, the proprietor of M/s. Aman Traders under Section 28 of the Customs Act, 1962. (2) Confiscation of seized 4,189,20 pcs of ball bearings of 'KG' brand imported vide B/E No. 367208 dated 17-10-2003 and the wooden pallets, cardboard boxes, cartons & inner packages used to pack the aforesaid 418920 pieces of bearings under Section 111(d) and (m) of the Customs Act, 1962 was ordered with an option to the importer i.e. M/s. Aman Traders to redeem the goods on payment of redemption fine of Rs. 20,00,000/- (Rs. Twenty Lakhs only) i.e. after payment of Anti-Dumping duty. (3) Penalty of Rs. 91,91,943/- was imposed on Shri Surya Narayan Mishra, the proprietor of M/s. Aman Traders, under Section 114A of the Customs Act, 1962. As he is the sole proprietor of M/s. Aman Traders, I do not impose any separate penalty on M/s. Aman Traders. (4) Personal penalty of Rs. 3,00,000/- was imposed on Shri Gagan Thapar under Section 112(a) of the Customs Act, 1962. Background of Order of Adjudication No. 100/2005, dated 28-11-2005 5. When one container bearing number BLJU 2201574 remained uncleared at ICD, Patpargang for several days, enquiry was conducted by Investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 dated 13-7-2003 issued by Aurea Industries Pvt. Ltd., 547/2, Weralatundulwa Road, Negomba Mabole, Wattala, Sri Lanka showed that the said concern had sold 4,21,170 pcs of ball bearings to M/s. Metal Trading Co., Dubai for an amount of US $ 39,111.50 with delivery port shown as Nhava Sheva and final destination as ICD, Patparganj. (d) Commercial Invoice No. MTC/2003/075 dated 25-8-2003 issued by M/s. Metal Trading Co., LLC, Dubai showed that aforesaid 4,21,170 pcs. of ball bearings declared to be of Sri Lanka origin in the invoice were sold to M/s. Aman Traders, 26/116, Gali No. 10, Siddhharth Gali, Vishwas Nagar, Shahdara, Delhi for US $ 41362.95. (e) Country of Origin Certificate No. 202398 dated 25-10-2003 issued by Dubai Chamber of Commerce & Industries showed country of origin as "Sri Lanka", Exporter as Metal Trading Co.(LLC) P.O. Box 20395, Dubai (UAE), Consignee as M/s. Aman Traders, 26/116, Gali No. 10, Siddhharth Gali, Vishwas Nagar, Shahdara, Delhi and Invoice No. MTC/2003/75 dated 25-8-2003 for US $ 41362.95. (f) Bill of Lading No. CMB/NVS/20030708 dated 13-7-2003 issued by Balaji Shipping Agencies, U.K. Ltd., inter alia, indicated Port of Loading as Colombo. (g) P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer; absence of declaration regarding 'KG' Brand markings on the bearings in the import documents; non-existence of the importing firm 'Aman Traders' at the declared address; absence of country of origin certificate issued by the specified Sri Lankan authorities and the 'KG' brand bearings being of Chinese origin, attracting anti-dumping duty; 4,18,920 pcs. of ball bearings of 'KG' Brand recovered from the aforesaid container during the search along with the packings were seized under Section 110 of the Customs Act, 1962. Country of origin was found to be mis-declared by the importer with intent to evade anti-dumping duty. When it was found that fraudulent import was made in the name of Aman Traders, a Show Cause Notice F. No. 338/XIV/96/2003, dated 22-4-2004 was issued for adjudication of such imports. This show cause notice was adjudicated by O-I-O No. 100/05, dated 28-11-2005. Background of Order of Adjudication No. 105/2005, dated 30-11-2005 10. Aforesaid background showed path for further Investigation to ascertain various links of imports causing loss of Revenue and the persons behind such act. As stated aforesaid when Sri Gautam Chatterjee was examined, he uttered na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at shop to Sri Ramkrishna Tiwari of A-90/1, Jagatpuri, Delhi-51 and Sri Tiwari was doing business with one Sri Mukesh Gupta in the name of M/s. Maya Trading Co and they use to open the shop occasionally. But they vacated the shop in May, 2003. Accordingly Investigation proceeded to examine Sri Mukesh Gupta, who resided at Rohini. 14. Sri Mukesh Kumar Gupta was examined on 4-11-2003, who was resident of 55B, BA Block, Ashok Vihar, Phase-I, Delhi at the material time. In his oral evidence he stated that he was helping Shri Anil Goel of KMG Group. M/s. Maya Trading Company was formed by him at the instance of Sri Anil Goel. He confirmed that he took the premises identified as Shop No. 3, Plot No. 188, Pocket E-2, Sector 3, Rohini, Delhi from Shri Jaipal Singh in December, 2002 and started a firm called M/s. Maya Trading Co. with Shri Ram Kishan Tiwari S/o Shri Jogeshwar Tiwari in that premises. The firm was started on the advice of Shri Anil Goel, Director of M/s. KMG International having office address at 375, Main Road, Ghazipur, Delhi. Shri Ram Kishan Tiwari was benamidar owner of the firm M/s. Maya Trading Company and obtaining of IEC No., Sales Tax registration and opening of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the godown owner Sri Arun Gupta. The search operation thereto resulted with finding of number of empty cardboard cartons with the marking: M/s. AUREA INDUSTRIES PVT. LTD 574/2, WERALATUDUWA ROAD, OFF NEGOMBO ROAD MABOLE, WATTALA, SRI LANKA, TEL : 941-934257, FAX : 941-388712. This brought to light imports which was subject matter of adjudication Order No. 100/2005, dated 28-11-2005. 15. Inventory of the goods in the godown at 138-C, Main Road, Gazipur, Delhi revealed that rolls of copper wires were lying along with card board cartons found to have contained electronic fluorescent lamps of KMG brand with the markings : KMG/SL, MADE IN SRI LANKA. Carton/plastic sacks were found to have contained bearings of 'KG' brand and certain other brands. Used containers of black paint in open condition with a paint brush were also found. Preliminary examination revealed that 1309 card board cartons containing bearings of 'KG' and 'Bauer' Brand and 110 plastic sacks containing bearings in loose condition were found. Search operation further revealed that 8,48,686 bearings/bearing parts of foreign origin in assorted sizes and numbers having markings of "KG" & "ABEC-1 BAUER" existed in that god ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essable value of the goods was determined at Rs. 28,26,183/- and Bill of Entry was found to have been assessed @ Nil Basic Customs Duty (under exemption Notification No. 26/2000 dated 1-3-2000 as amended which applicable to specified goods manufactured in Sri Lanka) + 16% CVD + 4% Special Additional Duty (SAD). The Total amount of duty assessed and paid on 3-5-2003 was Rs. 5,83,324/-. (2) Bill of Entry No. 361632 dated 19-6-2003 was found to have been filed in the name of M/s. Maya Trading Company, Plot No. 188, Pocket E-21, Sector-3, Rohini, Delhi and covered import of 6,00,000 pieces of ball bearings from M/s. Metal Trading Company, LLC, Dubai vide container No. APMU 2749486. The commercial Invoice Number 029 dated 27-5-2003 issued by M/s. Metal Trading Co., LLC, Dubai mentioned the goods covered there-under was ball bearings - size 6201ZZ - 3,00,000 pieces and ball bearings - size - 6202ZZ - 3,00,000 pieces @ US $ .07 per piece (C&F) with total invoice value at US $ 42,000. The packing list mentioned number of pieces as 6,00,000 and gross weight 25850 kgs and net weight as 24600 kgs. The Bill of Lading number DXB 820957 dated 26-5-2003 issued by MAERSK Seal and mentioned the Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearings of various sizes, packed in 511 boxes, gross weight as 24353.810 and net weight as 23293.310. The Bill of Lading number DNALCMB 030500028 dated 11-5-2003 issued by DONGNAMA Shipping Co. Ltd. mentioned the port of Lading as Colombo, Port of discharge as Nhava Sheva, Place of delivery as Patparganj (Delhi), container numbers DNAU 2220130 and DNAU 2228566 and gross weight as 50400.000 kg. The Certificate of origin submitted along with import documents was shown to have been issued retrospectively by Department of Commerce, Sri Lanka bearing Reference No. CO/ISFTA/03/2748 dated 12-5-2003 showing the country of origin as Sri Lanka. The Bill of Entry was filed through CHA M/s. Star Carrier. The examination report mentioned in the goods, inter alia, as "ball bearings", goods form manufacturer, COO (Country of origin) - Sri Lanka and COO certificate endorsed." The assessable value of the goods determined at Rs. 38,41,923/- and bill of entry was assessed to duty @ Nil Basic Customs Duty (under exemption Notification No. 26/2000 dated 1-3-2000 as amended which is applicable to specified goods manufactured in Sri Lanka) + 16% CVD + 4% Special Additional Duty (SAD) as under: The total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dalbir Singh on 9-12-2003, Sri Gulab Singh on 9-12-2003, Sri Ajab Singh, Driver on 22-12-2003, Sri Basant Sharma on 10-12-2003, Sri Tutul Mandal on 10-12-2003, Sri Gautam Chatterjee on 16-1-2004, Sri Yusuf Khan on 16-1-2004, Sri Anil Goyel on 12-12-2003, Sri Mohan Lai Thappar on 24-12-2003, Sri Dillip F. Meheta on 6-2-2004, Sri Jitendra F. Meheta on 6-12-2004 and Sri Champalal Daga on 6-2-2004. 18. Investigation could not know whereabouts of Sri Ramkrishna Tiwari, Proprietor of M/s. Maya Trading Co and also whereabouts of Sri Raju, Proprietor of M/s. Devsons could not be known. 19. On examination of seizure of the impugned goods made form the godown at 138C, Main Road, Ghazipur, Delhi through panchnama and the goods covered by four Bs/E No. 158099 dated 23-5-2003, 361632 dated 19-6-2003, 157960 dated 1-5-2003 and 158324 dated 2-7-2003, it was found that out of 8,48,686 pieces found in the inventory, only 2,66,873 bearings as detailed in Annexure-I to the Show Cause Notice were appearing in the 4 consignments imported in the name of M/s. Maya Trading Co. and M/s. Devsons at ICD, Patparganj and balance 5,81,813 pieces of bearings were not evidenced by any document. Out of total num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "KG" ball bearings to India. Vide letter dated 29-3-2004, the Consulate sent two letters from M/s. KG International. Vide letter dated 8-3-2004 signed by Ms. Asma Noor, Executive Secretary, KG International, it was confirmed that KG brand was owned by them; that they get ball/roller bearings manufactured from China on job work basis. Vide Communication dated 28-3-2004, KG International confirmed that they do sell ball or roller bearings to local customers on cash payment basis. 22. Sri Lanka Customs, after conducting verifications with Deptt. of Commerce, Sri Lanka, informed vide letter Nos. CIU/WROA/05/07 dated 20-7-2005 that the certificate of origin Nos. CO/ISFTA/03/2748 and CO/ISFTA/03/3618 though issued by Deptt. of Commerce, Sri Lanka, have not been issued to M/s. Aurea Industries Pvt. Ltd. but instead have been issued to M/s. Celetron Ltd., Kandy, Sri Lanka for computer parts manufactured by them. The copies of original certificates issued by the Department of Commerce were also enclosed with the said letter of Sri Lankan Customs. It was also informed by Sri Lankan Customs that certificate No. CO/ISFTA/03/2138 was under investigation by them. Investigations made by the DRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2003, 158099 dated 23-5-2003, 361632 dated 19-6-2003 and 158324 dated 2-7-2003. Learned adjudicating Authority observed that the manager/owners of transport companies, truck drivers of Shri kapur Chand have not retracted from their statements. 24. Based on the outcome of investigations made against aforesaid 4 B/E Show Cause Notice No. DRI F.No. 338/XIV/98/2004 dated 30-4-2004 was issued to M/s. Maya Trading Co., Shri Ram Kishan Tiwari and Shri Anil Goel, M/s. Devsons, Shri Raju and Shri Anil Goel, Shri Anil Goel and Shri Arun Gupta, S/Shri Suresh Pal Gupta, Mukesh Kumar Gupta, Arun Gupta, Jitender Mehta @ Jeetu Mehta, Dlip F.Mehta, Gagan Thapar, Basudev Garg, Ashok Pathak, Gautam Chatterji and Ms. Preeti Daga and S/Shri Anil Goel, Ram Kishan Tiwari and Raju individually. This show cause notice was adjudicated by OIO No. 105/2005 dated 30-11-2005. Issues Involved in Adjudication 25. Learned adjudicating authority examining entire materials and pleadings of the parties framed following issues for adjudication in the order of adjudication No. 105/2005 dated 30-11-2005 : (1) Whether the goods imported by M/s. Maya Trading Co. vide B/E No. 157960 dated 1-5-2003 and by M/s. Devsons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate No. CO/ISFTA/03/2748 dated 12-5-2003. The country of origin certificate was found to be forged one. The goods covered under this Bill of Entry were cleared @ nil basic customs duty under the Notification 26/2000-Cus., dated 1-3-2000. Thus duty was evaded by the importer by wilful misdeclaration and mis-representation of facts. Hence, the duty on the subject bearings was recoverable under Section 28 read with proviso 12 to the said Section 28 of the Customs Act, 1962 from the importer. (c) B/E No. 158324 dated 2-7-2003 In respect of the goods involved in the B/E No. 158324 dated 2-7-2003, the country of origin declared on the import documents was Sri Lanka. It was done on the basis of the country of origin certificate No. CO/ISFTA/03/3618 dated 18-6-2003. This country of origin certificate was found to be forged one. The goods covered under this Bill of Entry were cleared at NIL rate of basic customs duty under the Notification No. 26/2000-Cus., dated 1-3-2000. Thus duty was evaded by the importer by wilful misdeclaration and mis-representation of facts. Hence, the duty on the subject bearings is recoverable under Section 28 read with proviso 1 to the said Section 28 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble under Section 28 read with proviso to the said Section 28 of the Customs Act, 1962 and clause 8 of sub-Section 9 of Section 9A of the Customs Tariff Act. 28. Finding conscious involvement of Shri Suresh Pal Gupta, Shri Mukesh Kumar Gupta, Shri Arun Gupta, Shri Dilip F. Mehta, Shri Basudev Garg, Shri Ashok Pathak and Ms. Preeti Daga, Anil Goel, Shri Raju and Shri Ram Kishan Tiwari, learned Adjudicating Authority completed adjudication with the consequences as set out at the beginning of this order. Arguments on Behalf of Appellants Sri Anil Goel, Sri Arun Gupta and Sri Suresh Pal Gupta 29. Ld. Counsel, Shri Pradeep Jain appearing on behalf of the appellants S/Shri Anil Goel, Arun Gupta and Suresh Pal Gupta in these bath of appeals argued that there was violation of principle of natural justice for denial of cross examination, non supply of report of Sri Lankan Authority and consideration of letters of Sri Lankan Government which was not before the learned adjudicating authority. He relied on the judgment of Apex Court in case of Swadeshi Polytex Ltd., 2000 (122) E.L.T. 641 (S.C.) and in the case of Laxman Exports Ltd. v. CC - 2002 (143) E.L.T. 21 (S.C.). He also relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of origin is not genuine, a negative does not prove that the bearings were of Chinese origin. There were no materials to show that M/s. Aurea Industries Pvt. Ltd. had imported bearings from China or they had not purchased bearings of origin of Sri Lanka. In respect of B/E No. 361632 dated 19-6-2003, when the goods were shipped in May, 2003 when there was no anti dumping duty on bearings and IGM was filed thereafter, the import of goods was complete before levy of anti dumping duty. The order of adjudication was therefore passed baselessly. His further argument was that imposition of penalty on all the three appellants was unwarranted without proof that Shri Anil Goel was the importer. There was no offence committed by the appellants. Duty demanded on bearings seized from godown were not liable to confiscation when the appellant showed that the bearings were part of bearings imported at Tuticorin Port by Fidelity Enterprises. There was no evidence of smuggling of bearings in question. Those goods were not notified goods under Section 123 of Customs Act, 1962. Therefore burden of proof was with the Department when 'KG' brand was available in India. Mere allegation that goods were of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments given to him without attaching himself to the commitment of any offence under the law. He was not aware of any motive of Sri Anil Goel to make import of any offending goods to cause evasion. His role was neither active nor connected any ill intent of the imports for which he should not face penalty u/s 112(a) of the Customs Act, 1962. Argument on behalf of Appellants Ms. Preeti Daga and Sri Dillip F. Meheta 34. Learned counsel Sri Hemant Bajaj appearing for Ms. Preeti Daga and Sri Dillip F. Meheta argued that there was absolutely no evidence against Sri Meheta who was resident Manager of M/s. Aurea Industries, Pvt. Ltd, Sri Lanka to suggest that he had directly dealt the offending goods to attract penalty u/s 112(a) of the Customs Act, 1962. Merely because he had signed certain documents he cannot be brought to charge under that section. He had neither imported nor exported the offending goods. He was under bona fide belief that after repacking the goods shall be of Sri Lankan origin. There was no misdeclaration made by him in respect of the invoices prepared by him and signed the same. Accordingly no penalty is imposable. He had not gained any extra benefit out of expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ball Bearings imported was evaded seeking notificational benefit which granted exemption to goods manufactured in Sri Lanka. Investigation revealed full proof smuggling activity by a group of individuals/concerns, to defraud Revenue. 37. Learned SDRs argued that the Appellant Sri Anil Goel was masterminded person and he was behind the scene operating the imports through three different dummy concerns viz., M/s. Aman Traders, M/s Maya Trading Company and M/s. Devsons. He along with other appellants in these batches of appeals was beneficiary of the fraudulent design made by him. They associated themselves in the whole process of evasion. 8,48,686 bearings seized from the Ghazipur godown controlled by Sri Anil Goel which proved that he was a de facto importer of the ball bearings through 5 (five) Bills of Entry discovered in the course of search. The Appellants committed fraud and caused loss of Revenue promoting fraudulent imports by their active involvement and rendered the goods liable to confiscation and invited penal consequences of law. 38. It was submitted on behalf of Revenue that the appellant Sri Arun Gupta had allowed use of his godown for fraudulent activities by his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve role to manipulate Country of Origin Certificate from Dubai Chamber of Commerce and connived with Shri Anil Goel as well as with Shri Dillip F. Meheta to send the goods to India and was instrumental in causing loss of Revenue. Against the appeal preferred by Sri Dillip F. Meheta, Revenue's submission was that he admitted in his oral evidence that he was working in M/s. Aurea Industries on the instructions received from Shri Suresh Pal Gupta from time to time and his main job in the employment was to supervise the work of repacking of ball bearings of "KG" brand exported by Shri Suresh Pal Gupta in the name of M/s. Aurea Industries Pvt. Ltd. of Sri Lanka and looking after their day to day work. His signatures appeared in various documents prepared by him in respect of offending imports. Investigation brought out his close connection with the above concern and his active involvement in the offending imports for the dummy firms was also proved in absence of his innocence came to record. Ms. Preeti Daga being Director of M/s. Aurea Industries Pvt. Ltd, Sri Lanka did not take suitable precautionary measure to relieve her shelf from charges being associated with that company as Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e used against the appellants since evasion and smuggling are organised white collar crimes committed under absolute secrecy. Revenue also placed reliance on the Apex Court judgment in the case of K.I. Pavunny v. AC, Cochin - 1997 (90) E.L.T. 241 (S.C.) for their above argument. 44. It was further submitted by learned DRs that learned Adjudicating Authority is not in any sense a Court. He is not bound by any procedure laid down by the Code of Criminal Procedure or by the Rule of Evidence as enacted in the Evidence Act. But, in discharging his quasi judicial function it is incumbent on him, not only to comply with the requirements of the relevant statutory provisions but also to apply the principles of natural justice. When he has discharged his duties in such manner his findings in the order of Adjudication can not be demolished. All the appellants were issued show cause notice following principles of natural justice and they were afforded reasonable opportunity of defence through hearing. Plea of no cross examination allowed and result of investigation not exposed are mere dilatory tactics to avoid consequence of law. Nexus of the parties, their intimate connection with each oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of a person in the status of co-accused obtained u/s 108 of Customs Act, 1962 is material following the Apex Court judgment in the case of Naresh Sukhwani v. UOI - 1996 (83) E.L.T. 258 (S.C.). 47. It also submitted on behalf of Revenue that the collusion of the parties in these batches of appeals was in the nature of secret arrangements among them for defrauding Revenue and Revenue could discover their modus operandi recovering the goods by search operation. It is not required that every link of chain of smuggling is to be brought to record for proving with mathematical accuracy. They relied on the judgment of Apex Court in the case of State of Goa v. Colfax Laboratories - 2003 (158) E.L.T. 18 (S.C.) and CC v. Bhoormull - 1983 (13) E.L.T. 1546 = AIR 1974 SC 859. 48. Revenue argued that the learned Adjudicating Authority is concerned with preponderance of probability following the judgment of Hon'ble High Court of Madras in the case of Santhanam v. CCE, Madurai, 1995 (79) E.L.T. 564 (Mad). All the Appellants involved in the smuggling racket were most concerned with or without physical control over offending goods when they were interested by all visible and invisible means and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowed on the basis of request dated 8-9-2003 filed by M/s. Albatross Shipping Pvt. Ltd., New Delhi was noticed by Investigation, that provided various clues for enquiry both in India and abroad. Oral evidence recorded from Shri Sanjay Madan who was Manager of M/s. Albatross Shipping Pvt. Ltd. confirmed the position that on the advice of the agent from Colombo, Shri Madan applied for amendment to IGM to change the name of consignee from M/s. Maya Trading Company to M/s. Aman Traders. A copy of E-mail dated 6-10-03 submitted by him established the fact. But none of the owners of the said concerns appeared to prove their bona fide and credence. 51. Ownership of the firm M/s. Aman Traders was known to the investigating authority from letter dated 3-11-03 filed by Shri Surya Narayan Mishra who claimed to be proprietor thereof. He stated in that letter that the goods seized were of Srilankan origin and not attracting anti-dumping duty. But whereabouts of Shri Mishra could not be traced and the claim was found to be fictitious. Oral evidence of Shri Gajinder Singh Uniyal of M/s. Uniyal Cargo Movers Pvt. Ltd. showed that their services were utilized by Shri Aman Traders, M/s. Maya Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok Pathak relating to Bill of Entry No. 367208 dated 17-10-2003 which is subject matter of adjudication in OIO No. 100/05 dated 28-11-2005 in respect of import of goods made in the container BUU 2201574. He agreed that owner of M/s. Aurea Industries Pvt. Ltd., Sri Lanka had arranged to import Chinese origin bearing of "KG" brand through Sri Lanka from Dubai and manipulated country of origin certificate with a view to evade anti dumping duty. Chinese ball bearings were purchased from KG group owned by one Sri Kedar Gupta who is Dubai based and who got those ball bearings made in China on job work basis. Sri Anil Goel also confirmed that consignment brought through bill of entry No. 361632 dated 19-6-2003 was by M/s. Maya Trading co. which was bogus firm created by Sri Mukesh Gupta and clearance was done by one Sri Surya Narayan Mishra, proprietor of M/s. Aman Traders. Invoices and country of origin certificate were manipulated to evade anti dumping duty. He also admitted that part of goods were stored in the godown of Sri Anil Goel which he had taken from his brother-in-law, Sri Arun Gupta. It was also admitted that clearance of goods was done through Sri Ashok Pathak of M/s. Uniyal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of Sri Suresh Pal Gupta. He also stated that Sri Anil Goel was the importer in India and the ball bearing supplied by Sri Suresh Pal Gupta of 'KG' brand were manufactured on job work basis in China and those were supplied in the name of various firms as per instruction of Sri Anil Gupta. 57. Intelligence Unit of Sri Lanka made visit to the address of M/s. Aurea Industries Pvt. Ltd., Sri Lanka. They found that the said premises were closed. Upon enquiry, they ascertained that proprietor of that company was Mumbai based and no manufacturing and assembling of ball bearings was done on that place. They also could not ascertain whereabouts of the proprietor of that concern. 58. Non-existence of M/s. Aurea Industries Pvt. Ltd. and questionable act of M/s. Metal Trading Company, Shri Suresh Pal Gupta remained uncontradicted and their role endangering Revenue by misdeclaration could not be ruled out by the appellants. Documentation was modality to cause export of the Chinese origin goods impressing that to be of Sri Lankan origin. Cogent evidence brought out by investigation showed that goods job worked in China came to Sri Lanka for ultimate export to India. Intimate connection of Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as from long standing experience and knowledge of Customs Authorities who frequently examine imports during their day to day discharge of duties and well acquainted with the nature of the goods. Oral evidence gathered u/s 108 Customs Act 1962, not being contradicted, the goods were found to be of Chinese origin and in absence of any cogent evidence led by the Appellant Sri Anil Goel and others to show that the goods seized were not of "KG" brand nor were of Chinese origin, the brand and country of origin remained uncontroverted. Consequently bald plea of no technical data on record showing country of origin of the seized goods seized was liable to be discarded being baseless. 61. Nothing came out to the rescue of the appellants in absence of their bona fide. Series of acts of appellant and chain of evidence gathered by investigation proved their ill intent and close association in the smuggling racket. No circumstantial or direct evidence was led to show that the investigation was perverse. Only one report received from overseas enquiry belatedly was challenged to have been used behind back of the appellants was baseless when that report was consequence of follow up enquiry an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion when the goods recovered by search operation proved motive of appellants as well as their ill will and part of goods smuggled was proved to be without proof of import. The case of misdeclaration was proved beyond doubt by cogent evidence gathered by Investigation. Natural justice did not appear to have been violated when cogent evidence brought out by Investigation left no doubt about involvement of the group promoting smuggling through various conduits. The appellants lead their defence and their case was in entirety considered by the learned Adjudicating Authority considering their reply to show cause notice. When the investigation in Sri Lanka by the Intelligence Authority of that country supported the case of investigation in India, credibility of evidence gathered by Investigation remained undoubted. Evidence Act not being applicable to quasi judicial proceeding, preponderance of probability came to rescue of Revenue and Revenue was not required to prove its case by mathematical precision. Exposing entire modus operandi through allegations made in the show cause notice on the basis of evidence gathered by Revenue against the appellants was sufficient opportunity granted fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggling activities. Appellants failed to rule out questionable role of each other, but contributed to the promotion of smuggling. None of the evidence gathered by Investigation were liable to be discarded merely because those gave rise to adverse consequence against the appellants, in view of their credence and trustworthiness as well as reasonability. Entire argument of revenue on the point of law relating to cross examination and nature of evidence as well as concealed nature of smuggling activities were forceful. Therefore there is no scope to hold that the adjudication proceedings suffered from violation of natural justice when the unfair deal of appellant surfaced. Accordingly the citations made by the appellants in the course of hearing were misplaced by them who failed mala fide of Investigation or the investigation by any means was liable to be vitiated. 67. Plea of Sri Jain learned Counsel for the appellant Sri Anil Goel that the goods were not of Chinese origin was without any evidence led by him in support of his arguments. As submitted by Revenue that preponderance of probability goes in favour of Revenue making allegation that the goods were of Chinese origin was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and echoing evidence on record do not demonstrate that Adjudications were made suspiciously or under surmise. All pleadings of the appellants were ill founded. Show cause notice properly brought them to charge exhibiting civil and evil consequences for opportunity of rebuttal. Nothing was dealt behind their back. Investigation story was backed by evidence and not impeachable. Corroborative and cogent evidence gathered by investigation directly and surrounding circumstances proving nexus of the appellants to the entire deal does not make investigation story unbelievable. Looking to the entire genesis of the case it can irresistibly be concluded that investigation has very successfully proved its case and what was apparent was proved not to be real. Modus operandi of the group proved that they had endangered Revenue. 71. Active involvement of Ms. Preeti Daga in the smuggling was not proved by investigation. Nor her conscious knowledge to the offending act came to light from the result of investigation. But modus operandi of the group only brought her to the chain of investigation. 72. Once all the aforesaid contributing factors called for confiscation of the goods, learned Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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