9911796707
TMI Blog2018 (7) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... cided in favor of appellant. - APPEAL Nos. C/70575-70577/2017-CU[SM] - A/70936-70938/2018-SM[BR] - Dated:- 27-11-2017 - Mr. Anil Choudhary, Member (Judicial) Shri A.K. Dixit, Advocate for Appellant (s) Shri Pawan Kumar Singh, Supdt (AR), for Respondent (s) ORDER Per: Anil Choudhary In all these appeals filed by the appellant-assessee, as the facts and the issue are common therefore, they are taken up together for disposal. 2. The brief facts of the case are that export of pulses/lentils from India is prohibited vide DGFT Notification No.15 (RE 2006)/2004 09 dated 27/06/2006 (as amended). There was intelligence received that huge quantity of pulses has been exported to Nepal on tractor trolleys and trucks illegally through off routes, located at the Indo Nepal border. Pursuant to the investigations and enquiries made by revenue, show cause notices were issued. It is alleged in the said show cause notices that revenue identified one Shri Ajay Gupta (appellant), who was working as a commission agent. His office was searched and certain documents were resumed under panchnama dated 16/11/2011. The statement of the said Shri Ajay Gupta was recorded on 25/11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his bank account. Further, his role in the whole picture is to provide Form- F of VAT from West Bengal to the Dall Mill owners for the bills issued in the name of his firms in lieu of the ₹ 3-5/ Quintal of pulses. This aspect was stated elaborately in the statement recorded. The copies of bills were resumed by the DRI, Siliguri under panchnama dated 18th June, 2012. He used to prepare the VAT returns to be filed by his firm on basis of details provided by the Dal Mill owners and the subsequent sale of all such purchases by his firm were shown on cash, which is only in his returns and such cash voucher sale entries were made in his computerized account. Further, regarding resumed copies of F Forms, he stated that he filed the said returns to the West Bengal Commercial Tax Department and the Annexure F of the said return had the details of interstate purchase from said Dal Mills of Kanpur. The said purchases were not received in physical form and the details of bills were provided by the respective Dal Mill owners. With regard to the payments received against the sales and sales to his firm, he stated that the same and not through his firm. He further stated names of several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per their contract/agreement. He acted as an underwriter for the safe movement of the consignment from Dal Mill to the delivery point. He further stated that he had never received any complaint/claim report for non-delivery of goods or non-payment of freight. Statement of one Mohit Agarwal, Proprietor of M/s Agrawal Freight Carriers, Kanpur was recorded wherein he stated that his firm had provided transport to different Dal Mill owners of Kanpur during the relevant period 2009 2012 on commission basis @ ₹ 150-300 per truck on receipt of requirement by Shri Ajay Gupta or the Dal Mill Staff and after negotiating the freight they provide the copy of GR, mentioning the firm name and instruct the driver to report to the Dal Mill. On being confronted with the statements of Shri Ajay Gupta and Shri Sushil Agarwal, Siliguri, he stated that he had never received any complaint for non-delivery of goods or non-payment of freight. Similar statements were given by Shri Varinder Singh, Proprietor of M/s Bombay Assam Freight Carriers, Shri Raju Kumar Tiwari, Proprietor of M/s Balaji Road Lines, Kanpur. 6. Statement of Shri Mithlesh Gupta, partner M/s Annapurna Udyog, Kanpur was record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t although he was instrumental in procuring orders, ensuring delivery and getting the payments of such consignments at Indo Nepal border, but he is not knowing the mode of transshipment across the border, as the drivers of transport receive such instructions directly from the Indo Nepal based traders. Further, statement of Sushil Kumar Agarwal was recorded on 24th June, 2015, wherein he stated that he have made payments through his Allahabad Bank and Standard Chartered bank accounts by demand draft and RTGS during the financial year 2009 10 to 2011 12. He also stated that the sale was made by both their concern to mill directly and informed the payment details to him. He raised bill in this respect and made entry of the same in his ledger. He also stated that no broker/middlemen between him and he also stated that pulses, which were sold directly by both him and Bundelkhand Dal Mill was also delivered at Bihar area of Nepal border and the same might be delivered in Nepal. 8. It appeared to revenue that Sushil Kumar Agarwal, Proprietor of M/s Shivdutt Rai Sushil Kumar/Authorised Signatory of M/s Mayank Traders, Siliguri was supporting in supply of pulses to Nepal by way of managi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d others preferred appeal before learned Commissioner (Appeals) who vide the common impugned Orders-in-Appeal have been pleased to set aside the redemption fine upon Annapurna Udyog, as the Dal Mill owners were not engaged in the act of smuggling. Further, it is nowhere alleged in the show cause notice that Dal Mill owners were making any monetary gain by resorting to such activities. Penalty on one Shri Sushil Kumar Agarwal had been reduced to the tune of ₹ 1,00,000/- and he would have received a maximum commission of ₹ 1,75,710/- @ ₹ 5/- per Quintal. The learned Commissioner (Appeals) also held that it is evident from records that the consignor of the goods namely Annapurna Udyog, Kanpur and complicity is not proved on record, as they have never accepted that they had ever dispatched any consignment of pulses to Nepal. Further, Ajay Gupta, broker (appellant), during adjudication proceedings in cross-examination on 19th April, 2016, has stated that as the broker, he received orders from customers, thereafter contacts the Dal Mill owners, procures the pulses and arranges the trucks and insured transportation of the pulses on the strength of the invoices in the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
