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TMI Blog2017 (10) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... earned senior counsel for the appellants stated that the appellants are not in a position to comply with the said order - appeal dismissed - decided against appellant. - Custom Appeal No. 1, 2, 3, 4, 5, 6 of 2016 - - - Dated:- 25-9-2017 - A. S. Oka And Riyaz I. Chagla, JJ. Mr.Vikram Nankani, Senior Counsel a/w Mr.Jitendra Motwani and Mr.Nanda Gopal i/b Economic Laws Practice for the appellant Mr.P.S.Jetly for the respondent ORDER P. C. 1 Heard the learned senior counsel for the appellants. Since similar issues are involved in this group of appeals, for the sake of convenience, we are referring to the facts of the case in Custom Appeal No.1 of 2016. This appeal arises out of orders passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (for short Appellate Tribunal ). The challenge in this appeal is to the three orders passed by the Appellate Tribunal. The first is stay order dated 6th June 2014, the second is the modification order dated 13th January 2015 and the third is the consequential order passed by the Tribunal on 16th April 2015 of dismissal of the appeal preferred by the appellants. 2 Appeal No.1 of 2016 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the firms are concerned, they were directed to deposit 20% of the penalty amount imposed on them within a period of eight weeks from the receipt of the order. 8 Applications for modification of the order dated 6th June 2014 were made which have been rejected by the second impugned order dated 13th January 2015. As stated earlier, as a result of failure of the appellants to deposit the amounts as directed, the appeals have been dismissed by the third impugned order dated 16th April 2015. 9 The learned senior counsel for the appellants firstly submitted that for considering the questions H and I, the case may be remanded to the Appellate Tribunal. He submitted that number of orders of remand have been passed by the Appellate Tribunal on the question whether the DRI was a proper Officer to issue a show cause notice under the Customs Act,1962. Moreover, he submitted that the other issue of non compliance with the requirement of subsection (2) of section 138(C) goes to the root of the matter. He submitted that the cross examination of the witnesses was not permitted in the adjudication proceedings. Inviting our attention to the order made in rectification proceedings, he sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and emails are pertaining to the applicants and applicants alone. There is no explanation whatsoever from the applicants why the emails of someone else, if it all, should be available in their Hard Disks/Laptop. In any case, the details in emails precisely correspond with the imports made, quantity, value etc. Emails indicate date, time and are over a period of years. The emails clearly indicate that the declared prices in the documents were not the real transaction value. Shri Rakesh Rathi was asked to explain such details and he did not state anything about this aspect but stated that the said emails are self explanatory. It is to be noted that Shri Rakesh Rathi as also Shri Gopal Rathi explained the contents of all the emails numbering about 400, so recovered. Even if one was to tamper the information, nobody can provide such details and therefore contents cannot be even tampered. Under the circumstances, we do not find prima facie case for the applicants... ( underlines supplied ) 12 It is in the context of the aforesaid findings of fact that the Tribunal observed that prima facie, in the facts and circumstances of the case, the fact that no cross examination of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant is available, there is no reason to consider or examine the value declared by other importers. Once the correct transaction values of appellant are available, in our view there is no need to go into values of other importers. Yet another argument advance by the Ld.Sr.Counsel is that the Tribunal decision in the case of Bothra Metal Alloys (supra). We have gone through the said judgment and found that the facts of that case are entirely different. In that case there were discrepancies in the title/number of the pen drives recovered and those from which data was retrieved. There were other discrepancies also. Moreover, in respect of 275 bills of entry, the value proposed was based upon LME price of the prime metal and using deductive system to arrive at the scrap value. This scheme was not approved and it is in this context that the Tribunal observed that prices of contemporaneous import be taken into account. Overall facts of the case of Bothra Metal Alloys are totally different and can not be compared to the present case and therefore direction and decision in that case are not relevant for the present case. Going to the financial hardship, we firstly note that even tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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