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TMI Blog2022 (7) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... ss-examination and only thereafter the evidence is admissible. In absence of compliance of the provision of Section138B of the Act, the statements are not admissible as evidence. The rejection of cross-examination in the impugned matter tantamount to violation of principles of natural justice. Request for cross-examination has been denied and the witnesses have not been examined despite specific reliance by the appellant on Section138B. The whole case revolves around irregularities in respect of receipt of currency with regard to exported goods. It is found that these violations relate to post export conditions. There is no doubt that any violation relating to foreign exchange are covered under FEMA, 1999 and not under the Customs Act. Though the show cause notice invoked Section 113(d) and 113(i) of the Customs Act but these provisions were invoked by only alleging violation of para 2.53 of the FTP and section 8 of FEMA, 1999. We therefore hold that there was no violation of Customs Act in any manner. There is no dispute about the description of the goods, its quantity and value. The export of rice was neither prohibited nor restricted. It is a well settled law that in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Foreign Trade (Development Regulation) Act 1992, Rule 11 and 14(2) of the Foreign Trade (Regulation) Rules 1993 read with provisions of Section 50 of the Customs Act 1962. Being aggrieved with the impugned order Appellants filed Appeals before the Commissioner (Appeals), who vide impugned order-in-appeal upheld the order of the Additional Commissioner, Customs House, Mundra and dismissed the appeals filed by the Appellant. Aggrieved, the appellant have filed these Appeals before CESTAT. 3. Shri Ajay Singh, learned counsel appeared for the Appellant M/s Bansal Fines Foods Pvt. Ltd. and co-appellant Shri Munish Bansal and Shri Paritosh Gupta learned counsel appeared for Shri V.Arjoon. Shri Ajay Singh submits that Learned Appellate Authority failed to appreciate that entire case against the appellant is based on statement of certain individual and letters from shipping line stating that container were discharged at Jebel AliPort in UAE coupled with statement of their employee. No inquiry or investigation, whatsoever was conducted as to what happened to the containers /goods after they were offloaded at Jebel Ali. During investigation, Appellant had always maintained th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities have however, failed to appreciate that there was no condition in the Indo-Iranian Trade that the goods must be delivered only in Iran or that it should be consumed only in Iran. 3.4 He also submits that Ld. Appellant authority failed to appreciate that even the Phytosanitary Certificate declaring destination as Iran, was furnished before Customs Authority in India. There is no allegation or any evidence that the said certificate was amended at any stage in order to get the goods cleared in a country other than Iran. In the impugned matter both the authority failed to verify the facts and documents submitted before them. Mere change of port of discharge cannot be the factor to conclude otherwise especially when incontrovertible evidence in the form of export documents from Dubai Customs has been adduced to the effect that goods were not cleared in UAE but shipped further to Iran. Ld. Adjudicating authority failed to appreciate that merely because the containers were offloaded at Jebel Ali, UAE, it does not get proved that the goods were diverted in UAE in absence of necessary verification at Jebel Ali Port/ Customs end. The entire finding of the original authority and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S Mahesh [2016 (331) ELT 402 (Ker)] Chennai Marine Trading [2014(304)ELT 354(Mad.)] A G Incorporation [2013(287)ELT 357(Tri)] Pundole Shahrukh [2014(313)ELT 573 (Tri.)] GTC Industries Ltd. [2011(264)ELT 433 (Tri.)] Harminder Singh Chaddha [2018(362)ELT 95] Krishnaram Dyeing Finishing Works [2007(209)ELT 410(Tri.) Om Prakash Bhattia [2003(155) ELT 423 (SC) Rajeev Verma [2007(218)ELT 200 Del] Shri Rama Thenna Thayalan [2021-TIOL-2269-HC-MAD-CUS] Shri Chinta Haran Oja CHA [2020-TIOL-611-CESTAT-DEL] 5. Heard both sides and perused the records of the case. We find that the case of the department is that M/s Bansal Fine Foods Pvt. Ltd. had filed the Shipping Bills/Export documents for export of goods i.e Rice to Port Bandar Abbas (Iran); but the goods were delivered at UAE (Jabel Ali Port). The remittance was received in Indian Rupees from Iran instead of free convertible foreign currency. Thus, there appeared to be mis-declaration on part of Appellant. The revenue in support of allegations rely upon the statements of Director, CHAs and the officials of Shipping Lines. However We find that these persons were not examined in the adjudication proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) held thus : Cross-examination is one part of the principles of natural justice : 23. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Vaishampayan, AIR 1961 SC 1623, held that the rules of natural justice, require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given an opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. A mere reading of the above said proposition clearly shows that the rules of natural justice require that a party must be given an opportunity to adduce all relevant evidence upon which he relies and further that the evidence of the opposite party should be taken in his presence by giving an opportunity of cross-examining the witnesses examined by that party. In the present case, neither any speaking order has been passed nor the respondent justified in not permitting the petitioner to cross-examine the above said eight witnesses. Thus, such att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a country other than Iran. 5.4 Without prejudice, we further find that Appellant lost the ownership of the goods as soon as let export order was issued by the Customs authorities. After the said let export order it was the responsibility of the Shipping Lines to ship the goods to the foreign buyer and the exporter having no control over the goods. Hence, Appellant cannot be held responsible if the importer situated at Iran had given instruction to change the port from Bandar Abbas port to Jabel Ali port as after the let export order was issued by the Customs authorities it was the importer at Iran who became the owner of the goods. In support of this finding we rely upon the CBEC circular No. 999/2015-CX dated 28-02-2015. This circular is with regard to at what point of time the transfer of property takes place in cases of exports. The CBEC has categorically provided that after the let export order is issued the transfer of property can be said to have taken place at the port where the shipping bill is filed by the manufacturer exporter. Further the Hon ble Apex Court in the case of Collector of Customs, Calcutta Vs. Sun Industries reported in 1988 (35) ELT 241 has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputer Exports (P) Ltd vs. Commr. of Cus., Visaskhapatnam reported in 2006 (199) ELT 636 and in the case of Bank of Nova Scotia Vs. Commissioner of C.Ex (Adj), Bangalore reported in 2009 (233) ELT 260 (Tri.-Bang). Though the first two judgments relate to period when FERA was in operation whereas the third judgment in the case of Bank of Nova Scotia relates to period when FEMA came into operation wherein it has been held that if at all there is violation of FEMA and the related regulations suitable action lies with the enforcement authorities and Reserve Bank of India. It has further been held that with regard to the violations of Exim policy, adjudication can be done only by authorities notified under section 13 of Foreign Trade (Development Regulation Act), 1992. Hence we hold that in the facts of the present case since it was only a case of alleged violation of the provisions of Foreign Trade (Development Regulation Act) and rules made there under as well as that of Foreign Exchange Management Act, the Customs authorities did not have jurisdiction to issue the show cause notice for said violation. 5.7 In respect of the Appeal filed by M/s. V. Arjoon, CHA, we find that the ..... 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