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TMI Blog2017 (11) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... on the other two appellants in terms of Section 114 (i) of the Customs Act, 1962. Appeal allowed in part (only as regards penalties). - Customs Appeals No.50469-50471 of 2017 - C/A/57647-57649/2017-CU[DB] - Dated:- 6-11-2017 - Shri Dr. Satish Chandra, President And Shri B. Ravichandran, Member (Technical) Shri Tarun Gulati, Advocate - for the appellant Shri Govind Dixit, Authorized Representative (DR) for the respondent ORDER Per. B. Ravichandran The appeals are against common impugned order dated 09/12/2016 of Principal Commissioner of Customs (Preventive), Jodhpur. The said order has been issued in pursuance of remand direction of the Tribunal vide final order No. 54999-55001 of 2014 dated 13/10/2014. This is a third round of litigation before the Tribunal. The case was remanded twice and it is before us for third time. 2. The brief facts of the case are that the main appellant (M/s Jai Export, Jodhpur) is a partnership firm engaged in export of hand tools. The other two appellants are partners of the exporting firm. The case against the appellants is that they have knowingly mis-declared the export value in the shipping bills and availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the said order and remand the matter for a fresh decision. Pursuant to the said remand direction, the Original Authority passed denovo order on 28/03/2013. When the mater came up on appeal before the Tribunal, the case was again remanded vide final order No. 54999-55001 of 2014 dated 13/10/2014. The Tribunal directed the Original Authority mainly to examine all the points raised by the appellants more specifically with reference to errors and assumptions made in the show cause notice; examination of conditions prescribed in Section 9D of the Central Excise Act, 1944 and the ratio of the decision of Hon ble Delhi High Court in J K Cigarettes Vs. CC, Delhi 2007 (242) E.L.T. 189 (Del.) with reference to cross examination of witnesses who did not appear before the Adjudicating Authority; applicability of the ratio of the decision of the Tribunal in Kanak Metal Industries Vs. CCE, Jodhpur 2012 (275) E.L.T. 115 (Tri. - Del.). The Original Authority decided the case pursuant to second remand direction, which resulted in the present impugned order. 4. The Original Authority after examining the various submissions of the appellants, evidences available on record an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned AR contested the submissions made in these appeals. He submitted that cross-examination of witnesses have been conducted and the Original Authority have examined the reliability of evidence after such cross-examination. Nonavailability of witnesses for cross-examination and the application of Section 9D to deal with such situation has also been examined by the Original Authority. The plea of the appellant that the statements of witnesses who have not been cross-examined should be discarded is not legally sustainable. The exception made in Section 9D has been examined to the facts of the present case. The substantial over-valuation of export goods with malafide intend of availing ineligible DEPB benefit has been established with corroborative and comprehensive evidences brought out during investigation. The appellants were attempting to take shelter by showing illustrative discrepancies in a few supporting evidences to contend that the whole case against them is without evidences. The available evidence have clearly brought out the modus operandi of the appellant in exporting goods with highly inflated FOB value and the evidences should be viewed in a cumulative manner. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings further. We are in agreement with the detailed examination by the Original Authority. The evidences available in the form of documents are corroborated and the statements given by these persons only added to such corroboration. We find that the Original Authority is correct in proceeding with the adjudication after recording the detailed reasons for taking various evidences including the statement of these persons while analyzing the case. 10. Regarding the cross-examination of Shri Musafir Ali, it would appear that the appellants relied on certain answers given during cross-examination in their support. This is mainly with reference to sale of hand tools which required further value addition and working before being shipped out of country. The Original Authority recorded that the statements rendered by Shri Ali during the course of investigation was very categorical and specific. It is clear that the cross-examination brought out various self-contradiction in the deposition of Shri Ali. For example, with reference to duplicate bill of invoice No. 46 the product was mentioned as chrome plating combination plier whereas Shri Ali as supplier stated in cross-examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and manipulation of purchase invoices, the Revenue proceeded to analyse these evidences for a conclusion. 13. We note that M/s Shree Nath Textiles, a proprietorship concern of Shri Mukesh Agarwal, one of the partners of the main appellant s firm had no facility to process the hand tools and there is a over-reaching control of the said unit by the main appellant s firm. The claim that the main appellant and M/s Shree Nath Textiles got the impugned goods processed from other job workers could not be established by any sustainable evidence by the appellant. 14. Regarding the claim of the appellant that certain exports through JNPT Port cannot form part of the present proceedings, the same has been accepted by the Original Authority and accordingly the same were excluded from the present proceedings. Regarding reliance placed on certain details collected from overseas sources with reference to import value of the impugned goods in Dubai, the Original Authority examined the issue (para 5.30.3) and concluded that the same is a corroborative evidence to indicate that the transaction with overseas buyer with reference to impugned goods are not transparent and found a clear basis for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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