9911796707
TMI Blog2009 (4) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,536/-Penalty 2 C/St/252/07 C/627/07 Hiralal Goyal, Director C.C.E, Hyd-II 02/2007 Rs. 24,02,053/- Penalty 3 C/St/253/07 C/628/07 Gagan 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Engineer was supposed to have valued the goods and given a certificate regarding their value. The Directorate of Revenue Intelligence carried out investigations into the exports and on the basis of the evidence 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 Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erabad supervised the stuffing in the container and sealed the said container with Customs OTL seal. The period involved in these exports is from 07-01-2000 to 31-03-2000. In all, there were 49 consignments. 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner of Customs, Hyderabad (Page No. 966, Vol. 4) whether there was any over invoicing in respect of exports. The Customs Authorities informed that the procedure for 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 Tradin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase Invoices for such large amounts while passing the Shipping Bills. They also stated that the said invoices were never presented by the appellants. Further, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respect of exports made by the appellants, already DEPB credit has been availed. The Departmental officers accepted the FOB value declared by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C - 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. On receipt of the said DEPBs, the same were sold subsequently. The impugned order has been passed in respect of three concerns, one of which is the appellant. All the operative portions of the paragraphs, which are the findings of the learned respondent, cannot be applied across the board to all the three concerns. 13. It is submitted that the purported value at Dubai custom cannot be construed as contemporaneous value. Moreover, those values declared at Dubai customs pertain to other part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-section (i) of Section 114 deals with the export prohibited goods. In the instant case, the impugned goods admittedly are not prohibited goods. On the contrary, the impugned goods have been permitted to be exported as per the procedure prescribed under the Customs Act, 1962 and the Rules made thereunder. ii. Sub-section (ii) of Section 114 deals with dutiable goods. In the instant case, the impugned goods are not dutiable goods as there is no export duty on the said goods. iii. Sub-section (iii) of Section 114 deals with drawback. In the instant case, no drawback has been claimed by the Exporters, in respect of the impugned goods. The impugned goods were exported under the Dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved 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 addresses in Russia were also not countered convincingly. In fact there is an implicit admission on the part of the Noticees that cash payment are also received through individuals against CDF declaration. These facts were also corroborated by the letter dated 17-3-2003 of Centurian Bank, Ludhiana Branch. In the circumstances, the allegations are sustained against the Noticees. No specific defence was put up by the Noticees, except for a remark that the exports on the basis of CDFs are not the subject matter of Notice and hence is not necessary to elaborate on this matter. It is highly irregular that such payments are received in the course of normal international trade through CDFs and no explanation is coming forward form the Noticees in this regard. Moreover, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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