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TMI Blog2016 (7) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, and considering the fact that the Hon'ble Gujrat High Court has remanded the matter for reconsideration, we are of the considered opinion that it would be appropriate to direct each of the applicants to make the specified pre-deposit against the penalty imposed as per the table. Partial relief granted - Stay order modified. - C/11486/2014-DB C/S/12382/2014, C/ORS/10759/2015, C/11599/2014-DB C/S/12614/2014, C/11488/2014-DB C/S/12410/2014, C/11597/2014-DB C/S/12604/2014, C/11600/2014-DB C/S/12615/2014, C/11680/2014-DB C/S/12714/2014 - M/10369-10374/2016 - Dated:- 14-6-2016 - Dr. D.M. Misra, Member (Judicial) and Mr. P.M. Saleem, Member (Technical) For Appellants: Shri R. Surbamanya, Shri H.D. Dave - Advocates, Shri Pradeep Jain, Chartered Accountant For Respondents: Dr. J. Nagori, A.R. (Additional Commissioner) ORDER Heard the respective advocates and the Ld. A.R. for the Revenue. 2. These stay applications were earlier heard by this Tribunal and by Order dt. 04.12.2014 pre-deposit of 1% of the total penalty imposed against each of the applicants was directed. As the aforesaid applicants did not comply with the said direction of pre-deposit, their a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idences in establishing the links of the chain of events leading to illegal export of MOP; commencing from the stage of its procurement from M/s IPL, the change of its packing in various godowns, transport to various ports for exports, realization of actual export proceeds through banks, and admission by overseas buyers that the goods received by them was MOP. It is not feasible at this stage to enter into scrutiny of all the statements and other corroborative evidences, but it would suffice if the observations of adjudicating authority relating to the evidences of Shri Pravin Saraf Director of the Appellant are visited which read as: 80.3 Shri Pravin Saraf in his statement dt.15.04.2010 admitted that he knew Shri Ghanshyam Oza of M/s Shivani Shipping since long and all exports from Mundra and Kandla port made by him was through him only; that all the documents were sent to Shri Oza through e-mail and all the documents were signed by Shri Oza employees; the said facts given by Shri Saraf is corroborated with the statement of Oza; He also corroborated the statement of Shri Shantilal Mali and Shri Ashok Agarwal regarding payments to M/s Sandeep Suppliers and M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttances is higher than the value mentioned in the Shipping Bills/Export invoices of similar nos. filed by them before the Customs authorities at the port of export for the same consignments. The documents like commercial invoice of higher value, SDF Declaration form submitted before the Bank officials were signed by Shri Pravin Saraf in the capacity of a Director of M/s Saraf Impex Pvt. Ltd. by putting his seal. It was also revealed from the investigation that font size and quality of paper of these two different set of documents were also different. 85.2 I further find that M/s Saraf Impex Pvt. Ltd. in order to avoid detection by Customs officials at the port of export had mis-declared the export value of the goods, declared on the export documents as Industrial Salt , Feldspar Powder , Quartz Powder , Talk Powder etc on the lower side, however, in order to bring in remittances of actual value they had forged the Shipping Bills and relevant invoices and presented the same before the Bank officials, which clearly establish malafide on the part of M/s Saraf Impex Pvt. Ltd. I also find that on verification of the documents supplied by the AGM, Bank of India, Kolkata Oversea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner relying on the evidences collected from receivers of the MOP i.e. the overseas buyers, substantiated it observing as: 86.1 I find that during the investigation, it was clearly established the fact of exporting M.O.P. a restricted commodity for export in the guise of Feldspar Powder, Industrial Powder, Quartz Powder etc. by M/s Saraf Impex Pvt. Ltd. Further, it was also established that the overseas suppliers had made correspondences with Shri Pravin Saraf of supplying M.O.P. or Potassium Chloride. Further, I find that the First Secretary (Trade), Embassy of India, Brussels informed vide their report dt.27.05.2011 that the goods exported by M/s Saraf Impex Pvt. Ltd were cleared by the importers of Belgium as Muriate of Potash . The said report was received in respect of goods exported vide Invoice Nos.SIPL/EXP/45/09-10, dt.29.05.2009 and SIPL/EXP/46/09-10, dt.29.05.2009 of M/s Saraf Impex Pvt. Ltd, exported from Mundra Port and imported by the consignee at Antwerp Port, Belgium and in the export documents M/s Saraf Impex Pvt. Ltd. had declared the said export goods as Industrial Salt . 86.2 Further, I also find that the Secretary (Trade), Brussels vide letter dt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the said consortium. In the said godown premises, original packing of the said goods was removed and goods were then repacked in plain HDPE bags/Bags pre-printed as Industrial Salt/Feldspar Powder , the said bags were procured by the said consortium through Shri Shantilal Mali from M/s Sah Polymers Ltd, Udaipur, Rajasthan. It has also come on record that after repacking these goods were then transported by Shri Vijay Singh Gohil from Shivganj/Vadodara to the port of export i.e.Kandla/Mundra. The above said modus is established on the basis of statements of different persons which were involved in the said consortium. 7. A quick glance at above observations of the learned Commissioner, leads us to formulate a prima facie view that the evidences adduced by the department against the aforesaid applicants prima facie establish the chain of events starting from the stage of procurement of MOP by M/s IPL, its diversion by the authorized dealers, procurement of packing material i.e. P.P. bags, change of packing in various godowns, transportation to various ports, its export declaring as industrial salt, actual realization of export proceeds through banks, and the accepta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue submits that said judgment of the Hon ble Delhi High Court is contrary to the judgment of Hon'ble Bombay High Court in the case of Sunil Gupta Vs.UOI 2015 ELT 167(Bom.). The Hon ble Bombay High Court has upheld the constitutional validity of the retrospective amendment, therefore, at this stage, it cannot be construed that DRI has no power to issue Show Cause Notice for the period prior to 08.04.2011. It is a settled principle of statutory interpretation that in interpreting any provision its constitutional validity has to be assumed by the courts. He has argued that in any case, the judgment of Hon'ble Delhi High Court has declared the retrospective Validation Act as ultra vires but upheld the amendment for the period after 08.4.2011. The Show Cause Notice in the present case was issued on 14.08.2012, therefore it is valid. We find force in the contention of the Ld. A.R. as there is no judgment on the subject by the jurisdictional Honble Gujrat High Court and the matter is now before the Honble Supreme Court. Besides, the applicability of the said judgment to the notice issued after 08.4.2011 would be examined at the time of disposal of the Appeals. 12. In the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered the financial hardships pleaded by other applicants. Considering overall circumstances of the case, the financial hardship expressed and also keeping in view the interest of Revenue, and considering the fact that the Honble Gujrat High Court has remanded the matter for reconsideration, we are of the considered opinion that it would be appropriate to direct each of the applicants to make the following pre-deposit against the penalty imposed as shown against their names:- Appellant/Applicant Penalty amount sought to waived/stayed pending disposal of the Appeal Pre-deposit ordered to be made M/s Saraf Impex Pvt Ltd Rs.260 Crores Rs.2 Crores Shri Pravin Saraf Rs.130 Crores Rs.25 lakhs Shri Vijay Singh Gohil Rs.80 Crores Rs.10 lakhs Shri Sharadbhai Morarjibhai Kakkad Pravin Thakkar Rs.24 Crores Rs.15 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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