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TMI Blog2008 (11) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... ales allowed within the policy. On the basis of intelligence, investigations were carried out into the functioning of the unit which revealed that M/s. SIPL had received materials under various CT-3 certificates from various suppliers and had also imported materials for manufacture of finished products and most of the materials were not accounted for inasmuch as some materials cleared under CT-3 certificates do not find mention in the raw material account of the unit and appeared to have been diverted, whereas in some other cases the materials both imported and indigenous were received by the unit but were sold to other 100% EOUs and holders of DFRC/DEEC licences and EEFC accounts. Inquiries, however, revealed that the material was either not received by the 100% EOUs and holders of DFRC/DEEC licences or had never been transported by the transporters as per the statements of the transporters and the RTOs according to whom the vehicles used were having registration numbers belonging to auto rickshaws, tankers etc. which are not capable of carrying such goods. 3. In view of above a show cause notice was issued seeking to demand : (a) duty amounting to Rs. 14,4900,309/- on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SIPL under Rule 26 of the Central Excise Rules, 2002. In addition to the above penalties, the Commissioner, under Rule 26 of the Central Excise Rules, 2002, has also imposed a penalty of Rs. 1 lakhs on Shri R.G. Afre, authorised signatory of M/s. SIPL; Rs. 25,000/- on Shri Satish Ganpath Salvi, authorised signatory of M/s. SIPL ; Rs. 50,000/- on Shri Bhaskaran Nair, export executive of M/s. SIPL; Rs. 75,000/- on M/s. V-Trans India Ltd.; Rs. l lakh each on Shri Shyam Impex, M/s. Shivarti Textiles Pvt. Ltd., M/s. Sonu Synfab Pvt. Ltd., M/s. Suncekowa Texports Pvt. Ltd., M/s. Kakda Impex, M/s. Sudarshan Texports Pvt. Ltd., M/s. Pearl Agencies and Shri Ashok Kumar Sharma, who have filed stay petitions before us. 5. Shri Sekhon, ld. Advocate for M/s. SIPL and its directors Shri Suresh Kumar Deora, Ms. Rekha Suresh Kumar Deora, Shri Manikchand Sharma, Shri Prabodh Diwan. Deepak Ramchandani and M/s. Pearl agencies submitted that the show cause notice alleges receipts and unaccounted procurement on forged re-warehousing certificates from M/s. Simco, Shri Shyam Impex, M/s. Suresh Synthetics and Modern Petrofills. It was his submission that in such cases where goods are not re-warehoused, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as to how the goods have not been re-warehoused and alleges that Shri Ashok Kumar Sharma, an authorised signatory of Shivarti Textiles, Bhiwandi. has apparently signed re-warehousing certificate on behalf of M/s. SIPL. They had asked for cross examination of Shri Ashok Sharma which was denied. There is no hand writing expert s opinion in respect of Shri Ashok Sharma nor any statement has been recorded from him. Therefore, who has signed the re-warehousing certificate is left uncovered by the investigators and it is his contention that Shri Ashok Sharma has nothing to do with M/s. SIPL. 9. It was submitted that even though the hand writing of the officers was sent for expert opinion, no such opinion was obtained about the handwriting of the others. They have asked for the cross examination of the authorised signatories, which has been denied. These signatories have also questioned the findings of the Commissioner. 10. Plea of denial of natural justice was also made on account of refusal of cross examination of various persons, whose statements were relied upon and the various persons and transporters as well as presentation of their expert witness for examination in chief/cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods have been delivered by the consignor to the consignee, the duty liability is clearly on the consignee and in support thereof he referred to the decision of the Tribunal in the case of Santogen Textile Mills reported in 2007(214) E.L.T. 386. 16. As regards cross examination, it was submitted that the request for cross examination was very general in nature without specifying the purpose of cross examination. Thus, even cross examination of RTO, who has supplied the details of vehicle registered with him has been sought which was totally an unnecessary exercise. The authorised signatories are their own employees and have not retracted their statements so far. Once they have not disputed their signatures, the question of seeking expert opinion of handwriting was not required and opinion was taken in case of departmental officers because they disputed their signatures on the re-warehousing certificates. The department s case is based on a variety of evidence, including private records, certain chits found and payment details. Therefore, no injury has been caused in denying cross examination. In support therof he referred to the decision of the Supreme Court in the case of Kanun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n maintained by the Hon ble Supreme Court. It. was submitted that the noticees are firms and corporate bodies, who do not have mind of their own and therefore they cannot do anything wrong knowingly. 20. Similar plea was advanced by Shri Motwani, ld. Advocate for M/s. Suresh Synthetics. 21. Shri Umesh Desai, ld. Advocate for M/s. V-Trans (India) Ltd. submitted that though they have issued consignment note from Ankleswar to Murbad, the bills were raised only for transport of goods from Ankleswar to Surat and payment to that extent was received and therefore they cannot be said to have aided and abetted either the consignor or the consignee and did business in the regular course, hence no penalty was imposable. 22. None appeared, for M/s Kakda Impex (I) Pvt. Ltd., in spite of notice. 23. We have considered the submissions made by both sides. We find that M/s. SIPL has denied the receipt of the goods in respect of some CT-3 certificates relating to four suppliers i.e. M/s. Simco, Modern Petrofills, Shree Impex and Suresh synthetics on the ground that the re-warehousing certificates were not signed by their officers and if signed the same was done in their personal capacity, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find no merit in the plea of lack of jurisdiction. 24. As regards the finished goods, there is enough evidence in the form of statements of the transporters and RTO that the goods were never transported. Even the description of the goods does not match as while the goods supplied were POY yarn, the goods received were blended fabric. The GSM of the fabric does not tally. We further note that the show cause notice specifically refers to the letter of the Development Commissioner intimating the department that the LOP of M/s. SIPL has been cancelled on account of several defaults mentioned therein and referred to by the ld. Counsel for the Revenue and in fact the Development Commissioner has asked the Revenue to take appropriate action to recover duty. Therefore once an LOP has been cancelled and it has been confirmed by the Development Commissioner that export obligations have not been fulfilled, this itself results in the violation of conditions of the notifications under which duty free clearances of indigenous and imported goods were procured. Prima facie, therefore the duty is payable. 25. As regards plea of denial of cross examination, we do not find much force in the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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