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TMI Blog2019 (10) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... limited scope in the remand proceedings and could not have put the appellants in more precarious position then what was held against them in the earlier proceedings specifically when revenue had not filed any appeal against the earlier order. The penalty imposed under section 112 (a) reduced to 20 lakhs and 10 lakhs respectively - other part of demand upheld - appeal allowed in part. X X X X Extracts X X X X X X X X Extracts X X X X ..... not to rely upon their statement for proceeding against the appellants as has been held by the Hon'ble Bombay High Court in its order dated 11th October 2018 in Writ Petition No 11351 of 2018, Kurele Pan Products Pvt Ltd [2014 (307) ELT 42 (ALL)] and Swagat Synthetics [2018 (360) ELT 900 (Guj)]. * He also submitted that in the first adjudication proceedings the penalties imposed on the appellants were ₹ 20 Lakhs on M/s PIL and ₹ 10 Lakhs on Shri Daud M Dawood. While in remand proceedings Commissioner has imposed penalties of ₹ 50 Lakhs and ₹ 25 lakhs respectively contrary to the orders of Tribunal in case of Goenka Impex Pvt Ltd [2009 (233) ELT 102 (T.Del)] and Maestro Motors Ltd [2005 (183) ELT 467 (T-Del)] 3.3 Arguing for the revenue learned authorized representative submitted- * In the remand proceedings Commissioner has allowed the cross examination of the persons requested and all the efforts were made for producing those person. * Shri Jayesh Tanna had through his advocate Shri J C Patel submitted that since he was co-noticee in the matter he should not be cross examined. * He referred to various paras of the Commissioner order in which al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d M/s. PIL returned with a remark that the addressee is unknown. On 16.01.06 Shri J.C. Patel, Advocate for Shri Jayesh Tanna appeared before my predecessor and it was clarified to the advocate that Shri Tanna was required to be present only for cross examination by M/s. PIL and Mr. Dawood. 31. Vide letter dated 17.01.06, Shri Sujay Kantawala who had not appeared for the hearing scheduled on 16.01.06, requested for another date of hearing. Shri C.R. Hirani, advocate for K.L. Sharma vide letter dated 20.01.06 had requested for another date of hearing as he also did not attend the scheduled PH on 16.01.06. 32. Next personal hearing was fixed on 24.02.06 and intimations vide letter dated 03.2.206 were sent to all concerned including M/s. Rashmi Shipping Agency. The intimations sent to Shri Deepak Ganatra, Shri Dawood and M/s. PIL returned with remarks that the addressees are unknown. Vide letter dated 16.02.06, Shri Sujay Kantawala, Advocate for M/s. PIL and Mr. Dawood requested for another personal hearing on 10.03.06 or 17.03.06. This office had received a letter dated 23.02.06 from Shri Jayesh Tanna stating that since Mr. Tanna is a co notice in the SCN, he cannot be compelled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to M/s. Taneja Exports. It is on record that it was Mr. Jayesh Tanna who had approached the CHA Mr. Pankaj Mehta along with the high sea sales contact and other import documents of the goods, the same were delivered from the docks gate to Shri Jayesh Tanna as transport was arranged by Mr. Tanna. This is clear from the testimony conducted on 8th March 2006. Hence, Jayesh Tanna was acting on his own and used his own mind and it is clearly evident that my clients never know that M/s. Taneja Exports was created by certain other persons and clients were never aware that the advance licence which was issued in the name of Taneja Exports and which was used for clearance of the goods was a forged one. Mr. Jayesh Tanna, in his statement dated 18.4.2004, has clearly stated that Mr. Deepak Ganatra, his relative, who is engaged in trading of chemicals, proposed to Mr. Tanna about this entire deal and introduced Mr. Pritipal Singh sometime in September, 1993. c. In fact, Mr. Tanna has undertaken to pay whatever Government Revenue he and Ganatra have evaded by their activities which clearly proves that Mr. Jayesh Tanna has, in connivance with Ganatra, Pritipal Singh and Kisen Sharma jointly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en ample opportunity of personal hearing and their written submissions made by their advocate Shri Sujay Kantawala are before me. In the wake of available evidences and submissions, I proceed to decide the subject SCN with respect to the two noticee M/s. Peacock Industries Ltd. (PIL) and Shri Daud A. Dawood, Director of M/s. PIL whose case has been remanded for denovo consideration by the CESTAT and is the subject matter of this adjudication proceedings. 40. On the basis of evidences available on record, submissions made by these two noticee through their counsel from time to time and cross examination of Shri Pankaj Mehta, I have to decide the following: i) whether M/s. PIL, who is the High Sea Seller, is liable for duty of ₹ 47,62,720/- along with interest as applicable in the subject case? ii) whether the subject goods are liable for confiscation under section 111(o) of Customs Act, 1962 and whether M/s. PIL and Shri Daud A. Dawood are liable for penalty under section 112(a) of the Customs Act, 1962?" 4.3 After recording the issues raised for cross examination and formulating the issues for his consideration of evidences on record Commissioner has proceeded to dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Sea Buyer is 74, Polo ground, Jaipur. It can be seen that the address of both is identical and the one of High Sea Buyer is shown as Jaipur and High Sea Seller is Udaipur. I am unable to satisfy my conscience that identical address of High Sea Seller and High Sea Buyer could be mere coincidence. Be as it may, the claim of High Sea Seller that he was not aware of fake address of High Sea Buyer is amusing since he was in constant contact with High Sea Buyer even after the sale is said to be over. Based on these facts I am not inclined to accept the submission of M/s. PIL that they are not at all concerned with the issue after their (so called) High Sea Sale Agreement. 43. The High Sea Seller (M/s. PIL) having claimed back part of HDPE which is cleared duty free under advance licence, cannot feign ignorance as to why goods were cleared duty free. It was the condition of the notification 204/92-Cus. dated 19.5.92 (DEEC Scheme) that goods after clearance shall be used for manufacture of a final product (actual use) by the importer. Thus, the High Sea Seller taking back the goods after clearance shows that the goods have not been used by Actual user and thereby the goods are liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-existent entity namely M/s. Taneja Exports and have also received a part of the consignment (176 Mts of HDPE) cleared duty free (under DEEC licence) routed back to them. They have apparently succeeded in getting the goods cleared duty free by a fictitious entity thereby violating the conditions of the notification 204/92 dated 19.5.92. The High Sea Sale transaction with M/s. Taneja Exports was made by Shri Daud A. Dawood in his capacity as the Director of M/s. PIL. In the wake of above, it appears that M/s. PIL and Shri Daud A. Dawood are responsible for the various acts for which the goods are held liable for confiscation under section 111(o) and therefore both are liable for penalty under sec. 112 ibid." From the discussions it is quite evident that the findings in the impugned order are not based only the statements of the Shri Taneja only who was not cross examined as he refused to make himself available being the co noticee. The order is based on holistic examination of all the evidences. Hon'ble Supreme Court has in case of Vinod Kumar Vs State of Punjab [2015 (3) SCC 220] expressing anguish over the state and manner in which the cross examination of the witness i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest of the accused as per law is protected but also the societal and collective interest is safe-guarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross- examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute." In the same decision Hon'ble Apex Court has stated as follows: "29. The next aspect which requires to be adverted to is whether testimony of a hostile evidence that has come on record should be relied upon or not. Mr. Jain, learned senior counsel for the appellant would contend that as PW- 7 has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant." Naresh J Sukhwani [1996 (83) ELT 258 (SC)] : "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 illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine." K I Pavunny [1997 (90) ELT 241 (SC)] "In Naresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of the same transaction, the offences punishable under the IPC, like Section 120-B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator's report) and the oral evidence of the witnesses in proof of the offences committed under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve" 4.5 In view of the decision of Tribunal in cases referred by the appellants in their submissions we are of the view that Commissioner had limited scope in the remand proceedings and could not have put the appellants in more precarious position then what was held against them in the earlier proceedings specifically when revenue had not filed any appeal against the earlier order. The relevant paragraphs of the decisions referred are reproduced below: Goenka Impex Pvt Ltd [2009 (233) ELT 102 (T-Del)] "7. The appellants also submitted that in the earlier proceedings, the adjudicating authority imposed a penalty o f Rs one lakh, whereas in the remand proceedings the penalty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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