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TMI Blog2000 (11) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... ania, the father and son duo combination, are the master minds behind several import/export frauds committed all over India. They are absconding ever since Detention Orders under COFEPOSA were issued against them in 1995 and they have fled the country. They are now declared as Proclaimed Offenders and their properties in India are under orders of attachment. Therefore, there is no surprise in the fact that they have not responded to the charges levelled against them in the SCN. The very fact is that they have not even put up a semblance of defence to the charges levelled against them shows that they are guilty of the charges as they have no worthwhile defence to offer. 2. The second order was passed by Commissioner of Customs (Adjudication), Mumbai dated 15-7-1997 (issued on 27-7-1997). In this case, the two appellants were also held as masterminds in defrauding the Revenue. The Commissioner imposed penalty of Rs. 1 crore each on the two appellants. The observation made by him implicating the two appellants reads as below: Accordingly, the importers namely M/s. Vinob Exports and its two Direc tors namely Shri Ashish Agarwal and Shri Shivkumar are liable to penalty under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seeking waiver of pre-deposit of the penalties and the duties were also similarly filed by the Power of Attorney Holder (PAH for short). 6. The five applications were heard together. Shri Sundar Rajan, Advocate, appeared for the applicants and Shri Chatterjee, Sr. Departmental Representative (as he then was) argued for the Revenue. The arguments advanced by both the sides were recorded by the Tribunal on 24-9-1999 in the following manner: These four applications relate to four appeals filed by the two appellants against two orders impugned before us. They are, therefore, being taken up together for decision. In the order dated 30-7-1996 the Commissioner of Customs (P) imposed penalty of Rs. 1.5 crores each on Shri Deen Dayal Didwania and Shri Navneet Didwania in the present applicants. Duty amounting to Rs. 1,59,40,455/- was also ordered to be recovered from them. In another order dated 15-7-1998 the Commissioner of Customs (Adj.) had imposed penalty of Rs. One crore each on the same applicants. Shri A.S. Sundar Rajan, Advocate argued for the applicants and Shri A.K Chatterjee, SDR argued for the revenue. Shri Chatterjee had a preliminary objection and that was that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gives the power in all circumstances and in any contingency and therefore, the appeals are in order. He makes an alternative submission that this is a curable mistake which he undertakes to cure for which he requests for time. We find that this request is reasonable. Adj. Registry to issue notice for hearing the case in January, 2000. (J.N. Srinivasa Murthy) M (J) (J.H. Joglekar) M (T) 24-9-99 7. When the hearing was resumed, the Tribunal recorded the following : Shri Sethna, Ld. Sr. Counsel appearing for Revenue adopted the arguments earlier made by Shri A.K. Chatterjee, SDR as narrated in the Tribunal s Order No. C-II 386-387/2000 WZB, dated 9-2-2000. (ii) Shri Sunder Rajan stated that on instructions he was not pressing the earlier argument that the mistake on which the filing up the appeal was challenged was a curable mistake and that the mistake would be cured. Shri Sunder Rajan then went through the next of the power of attorney and claimed that paragraphs 4, 5 and 8 thereof could establish that the powers delegated thereunder were sufficient to enable the holder to file the present appeal. He reiterated his submission that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation have been recorded by the Bench. Both sides advanced the same arguments in dealing with the preliminary objections extended to these two appeals also. (ii) Shri Sethna, Ld. Sr. Counsel makes the additional submission that as far as the impugned orders in these appeals are concerned, the Commissioner has not made any observation to the appellants having fled the country or used any expression to the effect that they were not available in the country. (iii) Shri Sunder Rajan submits the Commissioner who passed the orders in relating to these appeals was batch of appeal it was Commissioner of Customs (Preventive) who had personal knowledge of the events. (iv) On hearing both sides, the orders were reserved. C/36/99-Mum In the preliminary objection raised by the ld. DR in the appeals No. C/171/97-Mum and C/172/97-Mum were adopted by Shri A. Ashokan departmental representative. Shri Sunder Rajan ld. Advocate reiterated the submissions made by him. The orders of the Bench in this list of five cases was reserved today after giving Shri Sunder Rajan a period of 15 days to submit a copy of the unreported Judgment of the Eastern Regional Bench. Shri Sethna submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the earlier proceedings and therefore, this was not dealt with by the Tribunal at all. Either way, this being an order on a stay application, was an interim order and does not make available any ratio capable of being cited before any other forum. 13. In the other two orders referred to by the learned Counsel namely Order No. A/123-124/Cal./1997, dated 7-2-1997 [2001 (138) E.L.T. 1258 (T)] and A/145/Cal./2000, dated 16-2-2000 [2002 (148) E.L.T. 125 (T)] the issues do not relate to the preliminary controversy. 14. We have carefully read the text of the Powers of Attorney filed along with the appeal papers. Both are identically worded. The document is titled as GENERAL POWER OF ATTORNEY . The relevant part reads as below: KNOW ALL MEN BY THESE PRESENTS: that I, Shri Deendayal Didwania aged about 47 years, Indian, Inhabitant, residing at 172, Kshitij, 47, Nepeansea Road, Bombay-36, SEND GREETINGS : WHEREAS due to personal reasons frequently I have to go out of sta tion, hence I am unable to look after and manage the matters pertaining to my assets in Bombay, THEREFORE, I do hereby appoint, nominate, consti tute my younger son Shri Nitin Deendayal Didwania, aged a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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