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TMI Blog2020 (6) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... at for the equipment which basically meet the technical specifications, the WPC approval were provided as a matter of routine and the appellants have actually been obtaining the required WPC approval from the concerned department but this fact also does not absolve the appellant from the omissions and commissions which have been committed by them in forging the WPC approval. Quantum of penalty is reduced - appeal allowed in part. X X X X Extracts X X X X X X X X Extracts X X X X ..... or the end customers/broadcasters. That the imported equipments were such as; DVB, MPEG encoders/decoders, Multiplexers, etc. were to be imported through WPC import licence, which is issued by WPC of DOT. That the major customers of the appellant were ETC Network, MH one TV Net work, etc. That the appellant used to provide the service by following three types of import procedures:- First procedure - M/s ASL used to import the equipment in their own name and then sell it to the end customer alongwith installation of the same; Second procedure- the end customer used to import the equipment directly in their own name and M/s ASL used to provide technical consultancy and installation services to the end customers; Third procedure- based on High Sea Sale basis, in which M/s ASL used to order the equipment from foreign suppliers and act as importers till the time goods/ equipment reached Airport Authority of India, a high sea sale agreement was signed between M/s ASL and the end customers/ broadcasters. This agreement was then submitted to the Customs Department and the Importer's name was changed from M/s ASL to that of the end customer. 7. He further stated that in the 2nd and 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. A print out of ID NO. (generated) used to be taken along with the print out of the list of items to be imported. The list of items also indicate the corresponding ID Nos. Thereafter, the print out along with technical literature of the items be imported and other prescribed details, used to be filed in hard copy personally to the DOT. After about 10 to 15 days, DOT issued, the WPC licence, which was usually collected personally. 10. During the course of investigation, the copies of the WPC licences available in their files, resumed from the office of the appellant under Panchnama dated 6.9.2011, were forwarded to the Department of Telecommunication, WPC Wing, New Delhi to verify the genuineness of the same. Inquiries were also conducted with M/s. Aricent Technologies (Holdings) Ltd., Gurgaon with respect to the WPC licences obtained by them through the appellant. M/s. Aricent Ltd. submitted the details of the WPC licences along with the relevant bills of entry and other documents. The inquiries conducted with the DOT and Ms. Anuradha revealed that, M/s. Aricent had imported wireless transmitting and or receiving apparatus on the basis of the WPC import licences purported to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orging of WPC licences done by them. 14. Shri Jaspal Choudhary in his statement dated 24.07.2012 after going through the print out of the documents /data retrieved from his lap top under Panchnama dated 23.07.2012, which were merely invoice issued to clients, proposal forwarded to the clients, notification issued by WPC Wing of the Ministry of Communication and Technology etc. It was further stated that the import licence and covering letters mentioned above were forged before issuance. Further, it was stated that before submitting the application for import licence, an online ID is required which can be generated only when the demand draft no. for the requisite fee had been fed/given in the system. That they used to feed any D.D. number (genuine DD) on the basis of the DD's issued in a particular month from a particular bank. 15. Further, in terms of the notification no.71/Customs dated 25.09.1953 issued under Section 19 of the Sea Customs Act, 1878, as amended vide notification no.48-Customs dated 20.05.67 under Section 11 of the Customs Act, 1962, the import of an apparatus for Wireless Telegraph into India is restricted in the case of transmitting apparatus, and of receiving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntest confirmed by order-in-original dated 05.05.2014 No.28/NLB/Commr/I &G/2014 confirming the proposed confiscation with option to redeem on payment of fine of ₹ 20 lakhs. Further, a penalty of ₹ 10 lakhs was imposed under Section 112. Penalty of ₹ 50 lakhs on this appellant under Section 112 with equal amount under Section 114 AA. Further, penalty under Section 114 AA and 112 of the Customs Act was imposed on others as follows:- Name & Designation Penalty under Section 114AA Penalty under Section 112 Ashok Gupta, Chairman, ASL ₹ 5 Lakh ₹ 5 Lakh Sanjay Sachdeva, CEO, ASL ₹ 5 lakh ₹ 5 lakh Jaspal Singh, Manager, ASL ₹ 5 lakh ₹ 5 lakh Amit Mahajan, Ex-Manager, ASL ₹ 2 lakh ₹ 2 lakh Anuradha Diwan, AM, ASL ₹ 2 lakh ₹ 2 lakh 18. Being aggrieved, these appellants and others filed the appeals before this Tribunal. Appeal No.54226 of 2014 19. Similarly, the appellant had also provided WPC licenses for import to M/s. Hughes Communication India Ltd., Hughes Network Systems India Ltd. and vide order-in-original No.32/NLB/COMMR /2014 dated 16.05.2014 passed by the Commissioner of Customs ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director /employees and could not be considered by this Tribunal, while passing the earlier final order along with the importers' appeal. 22. Thus, no findings were given by this Tribunal relating to this appellant as their appeals were not listed for hearing. 23. He further submits that the entire case of the Department is based on the sole ground that the WPC licenses were forged/faked by this appellant. Further, as the issue relates to providing of fake/forged WPC licence by this appellant, they are the main party in the whole issue. Thus, without hearing these appellants, the earlier final order of Tribunal dated 18.08.2017, in the case of importers and others, have got no precedential value, so far these appeals are concerned. The importers have taken the stand that they were nowhere involved in any activities of alleged forgery of the WPC import licence, and they were under the bonafide belief that the licences were genuine. Further, the importers as is evident from para 8 of the earlier final order, did not make any submission to assail the allegation that the licences were forged. Naturally, it is this appellant against whom the main allegation lies. It is further urged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. State of Maharashtra (1976) 2 SCC 302: AIR 1976 SC 1167. It was further observed that the Department is not required to prove its case with mathematical precision and can rely upon the preponderance of probability principles. So far the request for cross examination of noticee nos.2,3,4 and 7 made in their written submission is concerned, and also the cross examination of the officers of the WPC- DOT, DRI is concerned, this opportunity was not sought by them during personal hearing. Hence, the same was ignored as the said prayer was not repeated at the time of personal hearing. It was further observed that so far the genuineness of the WPC licence is concerned, provided to the importers, it was confirmed by the DOT that the licences did not appear to be genuine as per their records. The ld. Counsel further contends that the ld. Commissioner failed to appreciate that the import licences in question were genuine and valid and were procured on behalf of the importer by this appellant, on the basis of the application filed online and after following the prescribed procedure. Further, DRI had addressed a letter dated 3.10.2011 to the Asstt. Wireless Advisor, WPC Wing of DOT, and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /18.10.2011, it is evident that the DOT has done matching of the zerox copies of the licenses supplied, along with copy of the despatch register, both supplied by DRI. There is no categorical finding, whether the said licence numbers exists on the record of the DRI or not. Further, the report is vague as it is stated - "licences do not appear to be genuine' , as the said licences were not found to be entered in the despatch register. Further, he submits that merely because the documents are not found in the despatch register, it does not conclusively follow that it is not genuine. No inquiry has been made from the issuing authority i.e. the officer under whose hand and seal, the licences were issued. It has not been ascertained if there were any other despatch registers maintained in the DOT. Thus, the allegation of Revenue is vague and it cannot be held that the licences in question are fake. 27. It is further urged that no forensic examination of the licence(s) was carried out to ascertain the genuineness. On this aground also, the allegations are rendered vague and not sustainable. It is further urged that unrelied documents, which were seized, were not released and/or given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings against the appellants in the matter. The ld. Counsel further urges that under the facts and circumstances, the whole case of Revenue lies on the inculpatory statements of the co-noticees, some of whom are directors/employees. Ld. Counsel states that these statements have got no evidentiary value in absence of following the mandate of Section 138 B, which requires recording of the statement in the adjudication proceedings and thereafter allowing the appellant to cross examine the witnesses of the Revenue. Reliance is placed on the Hon'ble Supreme Court's decision in the case of Andaman Timber Industries - 2015 (324) ELT 641 (SC) and also the Delhi High Court's decision in the case of Basudev Garg - 2013 (294) ELT 353 (Delhi). Further, in his statement, Shri Jaspal Singh Choudhary, Manager has allegedly admitted that 62 licences are forged. However, out of this list, only three licences of Aricent Technologies and two licences in respect of M/s.UGC Communication Ltd. and UGC Network Systems India Ltd. are alleged to be not genuine in the show cause notice. Thus, admitted position is that out of 62 documents/licenses, Revenue has found 57 to be genuine, even though Shri J.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, we find that the main allegations of the Revenue are based on - (i) statements, (ii) report of the Asstt. Wireless Advisor DOT dated 18.10.2011, (iii) recovery of two rubber stamps of the WPC Wing of the DOT. So far the additional grounds of appeal are concerned, we find that the same has been raised based on the facts and circumstances already on record. In this view of the matter, the miscellaneous application is allowed and the additional grounds are admitted for consideration. 35. The facts in the case of Dempo Engineering Works Ltd.(supra) are totally different and hence the ratio is not applicable in this case. 36. We find that WPC approval required for import of various kinds of wireless functionalities, such as Radio, etc. is required for the purpose that the equipments imported or marketed in India must confirm to the technical specifications as prescribed by Government of India and therefore, equipment type approval (ETA) Certificate from the Wireless Planning and Coordination Wing (WPC) wing of Ministry of Communication is required for valid importation or manufacturing or marketing purpose. We find from the entire investigations and impugned order-in-orig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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