9911796707
TMI Blog2009 (4) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... an Goyal, Director C.C.E, Hyd-II 02/2007 Rs. 24,02,053/- Penalty 4 C/St/260/07 C/658/07 Diamond Mink Blankets Ltd. C.C.E, Hyd-II 02/2007 Rs. 1,90,00,989/-Duty Rs. 1,90,00,989/-Penalty 5 C/St/261/07 C/659/07 Gagan Goyal C.C.E, Hyd-II 02/2007 Rs. 19,00,099/- Penalty 6 C/St/262/07 C/660/07 HL Goyal C.C.E, Hyd-II 02/2007 Rs. 19,00,099/- Penalty 7 C/St/256/08 C/635/08 Goyal Exports Ltd. C.C.E, Hyd-II 02/2007 Rs. 85,40,476/- Duty Rs. 85,40,476/- Penalty 8 C/St/257/08 C/636/08 Gagan Goyal C.C.E, Hyd-II 02/2007 Rs. 8,54,047/- Penalty 9 C/St/258/08 C/637/08 Hiralal Goyal C.C.E, Hyd-II 02/2007 ' Rs. 8,54,047/- Penalty 10 C/COD/446/07 C/St/327/07 C/786/07 S. Chandrasekaran C.C.E, Hyd-II 02/2007 Rs 85,405/- Penalty 11 C/COD/03/08 C/St/01/08 C/02/08 S. Chandrasekaran C.C.E, Hyd-II 02/2007 Rs. 1,90,010/-Penalty 12 C/COD/19/08 C/St/10/08 C/24/08 S. Chandrasekaran C.C.E, Hyd-II 02/2007 Rs. 2,40,205/- Penalty 3. We heard both sides. 4. In order to appreciate the various issues involved, it is necessary to understand the brief facts of the case. There are three main parties involved in the impugned order. They are : (a)&n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gathered, it was concluded that the appellants had over-valued the goods exported for claiming undue DEPB benefits. The investigations were carried out at the destination port, namely Dubai. It was found that the value declared at the port of Import was much less than the value declared in India in the Shipping Bill at the time of exports. 7. The goods were originally exported to M/s. Mikura Impex, Hong Kong, but actually received by M/s. Strident International, UAE. According to the investigation, Shri H.L Goyal and Gagan Goyal along with their overseas buyers have entered into a conspiracy to commit an export fraud and to defraud the Government by availing undue DEPB credits. The Bank Realization Certificate (BRC) was issued on the basis of CDF (Currency Declaration Form). It appeared that there were no connection between the exports and their realization. Shri S. Chandrasekaran, Proprietor of M/s. Servel Associates issued Chartered Engineer Certificate for the General Engineering Goods exported. The Commissioner in the Adjudication order has summed up his findings in para 20 of the impugned order. An extract of the said para is reproduced below: "20. To sum up, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignments. The 49 Shipping Bills were finally assessed, 9 Shipping Bills were provisionally assessed. The export proceeds had been completely realized and the Appellant Company's Bankers, viz., Centurion Bank, Ludhiana, have issued Bank Realization Certificates (BRCs) covering the exports made under the said 49 Shipping Bills. On the basis of the above, the appellants filed applications with JDGFT, Hyderabad for the issue of eligible DEPB Credits. Based on the said applications, the JDGFT, Hyderabad issued 16 DEPB Credits against the 49 Shipping Bills. The said 16 DEPB Credits were transferable DEPB Credits on post export basis, and issued in terms of para 7.43 of the Handbook of Procedures. On receipt of the transferable DEPB Credits, the appellants sold the DEPB Credits in the open market, since the same were issued on Post Export basis and are freely transferable. 8.2 On 12-1-2000, the DRI, Hyderabad, informed the JDGFT, Hyderabad that they were investigating into the activities of Rajneesh Agarwal, who has floated many export firms in various names such as "Vishnu Merchants, Pashupathi Exports, Rama Enterprises, Bhagwati Enterprises, Tanishque Brothers, Do Best Infoway, Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ascertaining and verifying the claims regarding the value were also taken into consideration, including market enquiry at the time of assessments. 8.6 The Licensing Authorities, have not initiated any proceedings against the appellant company in respect of the impugned exports. 8.7 The documents said to have been obtained from Dubai have not been attested by the Customs Authorities of Dubai as prescribed in the Evidence Act. Apart from this, the Bill of Lading shows the name of the consignee shows as M/s. Strident International Trading, Sharjah, and UAE. The Second consignee is shown as Mikura impex, Hong Kong. Further, the Bill of Lading shows the Invoice Numbers under which the impugned goods were exported. A verification of the Bill of Entry cited and filed before Dubai Customs shows that the person who applied for clearance is Thomsun Merchantile Marine LL, Dubai. Further, the invoice attached to the said Bill of Entry is said to be from Mikura Impex, Hong Kong to Strident International Trading, Sharjah and bears a different number and is not the same as cited in the Bill of Lading. Under the circumstances, no reliance can be placed on the same. The appellants pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they stated that if any documents are produced by an exporter, they would bear the Custom's Seal thereon. Very Surprisingly, all these so called Purchase Invoices were found only in the Shipping Bill files of the appellant at the Air Cargo Complex, Hyderabad, whereas the appellant had also exported a number of consignments of the impugned goods at the ICD/CFS, Hyderabad, but such documents were not found. The appellant, therefore, submits that the Investigating Agency has not hesitated to plant fabricated invoices to implicate them. In the Cross-examination record of Rajeev Kumar Agarwal, Deputy Commissioner of Customs, ICD, Hyderabad, wherein he stated that the normal procedure for valuation of export goods was followed in respect of shipping bills filed by the three Goyal Companies. 8.12 The Appropriate Authority for modifying the DEPB benefit is only JDGFT under the Foreign trade (Development & Regulation Act), 1992 and not the learned Commissioner. The following case-laws were relied on : (a) Pradeep Polyfils Pvt. Ltd. v. UOI - 2004 (173) E.L.T. 3 (Bom.) (b) Avon Appliances v. CC, Mumbai II - 2004 (172) E.L.T. 465 (T) (c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ravi Shankar, learned advocate appeared on behalf of the following appellants : (a) M/s. Goyal Exports C/635/2007 (b) Shri Hiralal Goyal C/636/2007 (c) Shri Gagan Goyal, C/637/2007 9.1 He urged that action has been taken against his clients based on the investigations in respect of the exports made by Goyal Impex. He relied on the Supreme Court decision in the case of ASCU Arch Timber Protection Ltd. v. CCE, - 2004 (167) E.L.T. 22 (S.C.) wherein the Apex Court held that the lower authorities used materials which pertained to one party to arrive at a finding against another party and this could not have been done. It was held that passing a common order disposing three appeals without separately dealing with the facts of each and every case was not proper. He also relied on the decision of the Apex Court in the case of CCE v. Srikumar Agencies - 2008 (232) E.L.T. 577 (S.C.) wherein it is held that by clubbing all the cases together and without analyzing the special features of each case, disposing of the appeals in the manner done was held to be improper. 10. The learned Advocate stated that in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 263 (T-Mum.) x. Top Man Exports Ltd. v. CC - 2007 (208) E.L.T. 353 (T-Mum.) xi. Kanhaiya Exports (P) Ltd. v. CC - 2006 (204) E.L.T. 295 (T-Kol.) xii. Pradip Polyfils Pvt. Ltd. v. UOI - 2004 (173) E.L.T. 3 (Bom.) xiii. Economic Traders (Guj.) Ltd. v. UOI - 2006 (130) ECR 418 (Guj.) xiv. CC v. Vishal Export Overseas Ltd. - 2007 (209) E.L.T. 331 (S.C.) xv. Abishek Export v. CC - 2006 (201) E.L.T. 56 (T-Bang.) xvi. Rioben International v. CC. - 2006 (198) E.L.T. 55 (T-Bang.) xvii. Advance Exports v. CC - 2007 (218) E.L.T. 39 (T-Ahmd.) xviii. Guru Nanak Exports v. CC - 2007 (215) E.L.T. 277 (T-Del.) 12. The FOB value declared by the appellants has been rejected without giving any reason. The appellants had realized export value as declared in the Shipping Bill and they had also produced Foreign Inward Remittance Certificates issued by the Authorized Dealer. The appellants obtained Bank Realization Certificates (BRC's) and submitted the same to the office of the JDGFT, Hyderabad and the JDGFT issued the DEPB on the basis of finally assessed Shipping Bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in India can be adopted. Though Dubai customs Bill of Entry gives bill of lading number, which in turn gives shipping bill number and appellant's invoice number, investigators did not correlate the documents, before re-determining the value on that basis. 15. The appellant Shri Chandrashekar has filed his appeals beyond the statutory period. He has stated that he was involved in an accident, which prevented him from filing the appeal in time. Therefore, we condone the delay. The COD application is allowed. The delay in filing the appeals are as follows : C/02/2008 delay is 73 days C/24/2008 delay is 90 days C/786/2007 delay is 54 days 16. Shri Venugopal, the learned advocate appeared on behalf of Shri Chandrashekar. He had submitted the following points : 16.1 It was argued that when the goods are not held liable for confiscation under the provisions of Section 113, the provisions of Section 114 of the Customs Act, 1962 can be invoked for imposing any penalty. Moreover, Section 114 does not cover the alleged offences said to have been committed by the appellant at the material time, for the following reasons : i. Sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in conducting the investigations. They have also tried to show that they had followed the prescribed procedure in exporting the goods and claiming DEPB credit. It has also been stated that the Departmental Officers have examined the goods and accepted the declaration with regard to the value of the goods. The appellants' contention is that in respect of the goods exported, the foreign exchange has been realized and therefore, there cannot be any overvaluation. Investigations have revealed that the foreign exchange realized do not appear to relate to the goods exported. We reproduce the following observations of the Commissioner in the impugned order. "17.1 I have considered the defence put up by the Noticees on these allegations. The allegation is proved by the admission of the Noticees that they have received cash payments also against the CDF declarations. The specific allegations that the signatures found on Currency Declaration Forms and Passports do not tally with those seen on the cash receipts by the Noticees, delay in receipt of amounts, have not been countered. Again the allegation that the exports were made to several individuals of Indian Origin with hotel address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation conducted did not relate to the exports made by them. Hence, we are not inclined to put to terms the appellants in respect of appellants in serial Nos. 7, 8 & 9. In fine, at this stage, we are putting the appellants to terms in the following manner. S/No. Appeal No. Appellant Pre-deposit (Rs.) 1 C/St/251/07 C/626/07 GOYAL IMPEX & INDUST. LTD Rs. 25,00,000/-(Rupees Twenty-five lakhs only) towards penalty 2 C/St/252/07 C/627/07 HIRALAL GOYAL Rs. 2,50,000/- (Rupees Two lakh and fifty thousand only) 3 C/St/253/07 C/628/07 GAGAN GOYAL Rs. 2,50,000/- (Rupees Two lakh and fifty thousand only) 4 C/St/260/07 C/658/07 DIAMOND MINK BLANKETS LTD Rs. 20,00,000/- (Rupees Twenty lakh only) towards penalty 5 C/St/261/07 C/659/07 22 GAGAN GOYAL Rs. 2,00,000/- (Rupees Two lakh only) 6 C/St/262/07 C/660/07 HL GOYAL Rs. 2,00,000/- (Rupees Two lakh only) 7 C/St/256/08 C/635/08 GOYAL EXPORTS LTD -Nil- 8 C/St/257/08 C/636/08 GAGAN GOYAL -Nil- 9 C/St/258/08 C/637/08 HIRALAL GOYAL -Nil- 10 G/COD/446/07 C/St/327/07 C/786/07 S. CHANDRASEKARAN -Nil- COD & Stay allowed 11 C/GOD/03/08 C/St/01/08 C/02/08 S. CHANDRASEKARAN -Nil- COD & Stay allowed 12 C/C ..... 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