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TMI Blog2014 (2) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Section 8(3)(4) of the Act and also alleging that S/Shri G.P. Poddar, A.K. Mittal and B.B. Verma were the persons responsible/supervisor/in-charge of the Company for conduct of its business at the relevant time when the import was made, they were required to show cause as to why adjudication proceedings as contemplated in Section 51 of the Act should not be held against them, for the aforesaid contravention. 2. Vide order dated 26.10.2006, the Special Director of Enforcement, holding them guilty of contravention of Section 8(3) & 8(4) read with Section 68(1)&(2) of the Act, imposed penalty of Rs.8.00 lakh upon the Company, Rs.2.00 lakh each on Mr. G.P. Poddar and Mr. A.K. Mittal and Rs.50,000/- on Mr. B.B. Verma. 3. While imposing penalty, the Special Director inter alia took note of the fact that Mr. G.P. Poddar, Managing Director of the Company in his statement dated 18.11.1993 had stated that they had placed order for import of P.P. Dyed Chips during the period Mr. A.K. Mittal was the General Manager and Mr. B.B. Verma was the Manager (Imports) and as per the procedure Mr. Mittal was the person to approve the purchase bill though wherever required he used to consult his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Foreign Exchange Regulation Act and that goods imported were of kind and quality etc. different from that specified by them at the time of acquisition of foreign exchange? ii. Whether the appellants had misdeclared the goods and imported pigment preparation/organic master batches as against P.P. Dyed Chips. If so, its effects? iii. The order of the Customs Authority dated January 24, 1991 holding the appellant guilty was confirmed by CEGAT holding that the manufacturers literature and other relevant information regarding the nature and composition of imported goods were suppressed deliberately and suppliers were asked by the importer not to indicate the correct description and classification of the goods. Whether these which was ultimately confirmed by the Supreme Court which finding are binding on the appellants as well as on this Tribunal. If so, its effects? iv. Whether the appellants have rightly been held guilty by the Adjudicating Officer and impugned order is liable to be confirmed?" Vide order dated 8.6.2009, Shri R.N. Poddar decided against the appellant and in favour of the respondents. Being aggrieved, the Directorate of Enforcement is before this Court by way of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exchange was obtained for import of PP Dyed Chips and the same was the declaration made by them while importing the goods. In other words this was not the case of the respondents before the Tribunal nor is it their case before this Court that they had obtained foreign exchange for import of pigment preparation or that in the declaration submitted by the Company the goods being imported by it were declared to be pigment preparation. 9. A perusal of the order passed by the Special Director of Enforcement would show that Mr. B.B. Verma had expressly admitted in his statement that the goods imported by the Company were pigment preparations. He had also admitted that the price of pigment preparation could be higher than the price of PP Dyed Chips. Even Mr. G.P. Poddar, in his statement had admitted that the price of pigment preparations could be higher than that of PP Dyed Chips. This was not the case pleaded by Mr. B.B. Verma in his statement, that pigment preparations and PP Dyed Chips were one and the same product. When the appeal was argued before Shri R.N. Poddar, it was admitted by the respondents that the goods imported by them were pigment preparations. Thus, there can be no di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the statement of the co-accused could be used only to corroborate other evidence as one of the circumstances under Section 30 of the Evidence Act but cannot be used as substantive evidence without corroboration from other independent evidence. It was also submitted that except the statement of Mr. Dudani there was no other independent evidence against the appellant. Rejecting the contention, the Apex Court inter alia held as under: "It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of pigment preparations. 14. Section 68 of the Act to the extent it is relevant provides that where a person committing a contravention of the provisions of the Act is a Company, every person who at the time the contravention was committed was in-charge of and responsible to the Company for the conduct of the business of the Company as well as the Company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Admittedly, Mr. G.P. Poddar was the Managing Director of the Company. Therefore, it can hardly be disputed that being the Managing Director he was a person in-charge of and responsible to the Company. In K.K. Ahuja vs. V.K. Vora [2009 (3) JCC (NI) 194], the Hon"ble Supreme Court, inter alia, held as under: "(i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix `Managing' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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