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TMI Blog2006 (3) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 62 (T)] in the case of Saraf Fabrics Ltd. v. CC. (B) Commissioner (Preventive) Mumbai, instead of CC (Ahmedabad), not accepting the exports made from Porbander (Gujarat) as valid. DEECs also completed by ACC Porbander (587, 619, 646) 2000 (116) E.L.T. 220 (T) (Para 17) in the case of Montana Valves Compressor (P) Ltd. (C) Commissioner (P) Mumbai, instead of CC, Nheva Seva/Mumbai Port from where the imported goods had been cleared, adjudicating the case. 1997 (73) ECR 348 (T) in the case of Informatika Software (P) Ltd. v. CC, (P) Calcutta. (D) Despite corrigendum to SCN (389) making it adjudicable only by CC, Nhava Sheva) CC, (Imp), Mumbai, CC, (P) adjudicating the case. 2002 (143) E.L.T. 100 (T) in the case of Kr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (75). (I) Cross-examination of Porbunder Customs Rajkot Central Excise officers not allowed despite repeated requests and justification (419, 410, 414, 416). 2001 (136) E.L.T. 9 (Bom.) in the case of Gyan Chand Sant Lal Jain v. UOI. (J) Firm having poor liquidity, not doing business and suffering losses for many years. (K) Regarding penalty on Shri Hitesh Shah (101), the law laid down is that no penalty is leviable on an employee. 2005 (185) E.L.T. 387 (T) in the case of O.P. Agarwal v. Commissioner of Customs, Kandla. Even otherwise, penalty not imposable for dealing with goods after their importation. 2001 (134) E.L.T. 428 (T) in the case of Ashwin Mehta v. CC, (P) Mumbai. (L) Penalty on Nikhil Gandhi (102) B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Commissioner has not prima facie acted beyond his Jurisdiction. Further, we are of the prima facie view that the department not proceeding against errant Customs officials cannot absolve the appellants from the consequences of their action. Similarly, non-supply of the CBI report, if any, cannot be fatal as the same has not been relied upon. Hence, we are of the view that the appellants do not have a case for complete waiver of the pre-deposit in their favour. However, considering the financial hardship pleaded by the learned advocate, we direct the first appellant to pre-deposit 25% of the duty amount and direct the other 3 appellants to pre-deposit 10% of the penalty amounts imposed on them within 6 weeks from the date of receipt of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing activities of the disputed goods and their export. M/s. Metropolitan Industries also tendered M/s. Fairlong Engineering Co. Pvt. Ltd. to supply goods for export. The exports made by them were cross checked by the Customs, Port, Octroi and Central Excise authorities. They had followed a regular AR-4A procedure for exports. There is evidence on record from abroad to show import of exported goods, including remittances of the amounts for the exported goods. 6. One of the serious objections in this appeal is about the jurisdiction exercised by the Commissioner of Customs (Pre.), Mumbai, in adjudicating the matter and coming to the conclusion that the exports were not made through the Port of Porbander, which was in the jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice and the conclusions are drawn on the testimony of the witnesses, not giving opportunity to cross examine the witness, has been prima facie vitiated the impugned order. 9. All these factors referred above constitute a strong prima facie case in favour of the appellants and in my considered view, this is a fit case to grant complete waiver of pre-deposit of duty and penalty, including other appellants and stay the recovery of the same, pending disposal of the appeal. Sd/- (T. Anjaneyulu) Member (J) 10. The following difference of opinion is placed before the Hon ble President. CESTAT in terms of Section 129C(5) of the Customs Act, 1962 :- (1) Whether the first appellant shall be directed to pre-dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Customs (Prev.), Mumbai has adjudicated the case which totally falls beyond his jurisdiction and as such the impugned order is illegal. (vi) The duty has not been demanded from the importer. (vii) The duty demand is completely barred by the limitation. (viii) Exports from Porbundar not admitted as valid despite the absence of any charge of collusion in the show cause notice. Proper Customs Officers had physically supervised the exports at Porbundar was not allowed cross-examination, receipt of inward remittance has been effected. Payment of Customs duty on arrival of consignment at foreign port, samples at Porbundar Port for freight verification report and wharfage report have been ignored by the Commissioner. CBI favourabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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