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TMI Blog2008 (1) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... also held that the goods in question having been cleared under bond, levy of redemption fine of Rs. 40,00,000/- in lieu of confiscation, was justified. In addition to this, duty demand of Rs. 1,02,49,821/- was made and the interest on such duty was levied in so far as the first Appellant was concerned. All the eight Appellants were imposed penalty of Rs. 5,00,000/- each under Section 112(a) of the Customs Act, 1962 by the above order. 2.1 Ld. Adjudicating Authority in Para 52 of the Order of Adjudication, held that out of materials imported duty free by the EOU first Appellant, in terms of Notification 53/97-Cus. dated 3-6-1997, no final product was available in the factory of the said EOU and appropriate documentary evidence for supply of the goods covered by Bill Nos. AJ/EOU/01/01-02 and AJ/EOU/07/01-02 to AJ/EOU/15/01-02 were not produced before the Department. This led to the Department to infer that supply of goods were not made to M/s. B.H. International Pvt. Ltd and claim of the first Appellant that there was fulfillment of import obligation was denied. While arriving at such decision, the Authority below concluded that the goods were diverted in the Domestic Tariff Area (D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Zinc Ingots and 65.064 kgs. of Copper Rods/Cathods, manufactured 102324 kgs. of Marine Valve Casting and cleared the same in eight consignments to M/s. B.H. International Pvt. Ltd., FEPZ (now FSEZ), by Deemed Export. During 2001-2002, the said EOU, by using 60.519 MT of Copper Rods and 40.368 MT of Zinc Ingots, had manufactured 95176 kgs. of Marine Valve Casting and cleared the same in five consignments to M/s. B.H. International Pvt. Ltd., FEPZ (now FSEZ), by Deemed Export. In respect of the remaining quantities of imported Raw Materials, i.e. 66.995 MT of Zinc Ingots, 20.000 MT of Nickel Cathods, 24.1245 MT of Tin Ingots and 79.731 MT of Copper Rods, the said EOU did not fulfilled the stipulated export obligation, in violation of the condition laid down in Section 71 and Section 59 of the Customs Act, 1962 and in the Notification No. 53/97-Cus., dated 3-6-1997, as amended. (iii) Shri Atish Agarwal, Director of the said EOU with the assistance of one Shri Dipesh Goswami and as per decision of the Board of Director of the Appellant EOU arranged fake and forged proof of exports in respect of the consignments. (vi) of Para 27 of impugned order, to manipulate the fraud and to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant. The evidences so led were (1) Signed invoices by SEZ Unit, (2) Signed challans by SEZ Unit (3) Invoices bearing signature of the Development Commissioner which proved existence of the document in the Office of Development Commissioner on the basis of which only it could be attested (4) Admission by the SEZ Unit of all sale in its Annual Return filed in the Office of Registrar of Company which were public document and amounted to admission, (5) Acknowledgement Slip of receipt of the goods by SEZ Unit of each of the invoices. Therefore, such vital evidence should be considered without ignoring the same. (iii) DRI did not disclose in the show-cause notice of the evidence recovered from M/s. B.H. International Pvt. Ltd., a SEZ Unit, and did not bring the same to the notice of the first Appellant to allow an opportunity of defence. The demand assessed by the DRI against the above SEZ Unit was admitted by them and whether the basis of assessment was proper was not disclosed to the first Appellant which requires to be confronted when an unilateral decision was taken in that case and that has affected the Appellant. This process by the DRI has biased the ld. Adjudicating Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Register of SEZ which is the property of the SEZ not the Unit. 4.3 Ld. Advocate appearing for the Appellants, in the course of hearing, relied on the judgment of the Hon'ble Delhi Court in the case of Sita Ram Aggarwal v. Union of India - AIR 1967 Delhi 38 holding that a dedicated devotion to rule of law is expected of the authorities exercising judicial or quasi-judicial powers. The demands and the claims of natural justice cannot be treated with scant regard. The circumstances of that case demonstrated that there was a clear violation of natural justice. 5. Ld. SDR, Shri J.K. Jha, appearing for the Revenue, submitted that the allegation made in the show-cause notice was well tested following principles of natural justice. Investigation was done by DRI appropriately which also met tests by the ld. Adjudicating Authority by an elaborate and reasoned order. Baseless plea of the Appellants that there was denial of natural justice is not at all entertainable after long time. 6. Having heard the matter extensively from both sides, although stay matters were fixed for hearing, it was considered necessary to dispose of all the appeals dispensing pre-deposit for the cry of the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly consider the defences and reject the same, if the same are not in accordance with law or are based on misconstruction of the factual aspect or mis-conception of law. 7.4 When certain documents are relevant and may be beneficial for raising a defence plea, the aggrieved should not be deprived of those documents to meet the end of justice. It may be stated that a defence whether is genuine or misconceived and whether is false or truthful, cannot be tested before the defence is raised. We also noticed that the demand is huge and the Appellant may get an opportunity to defend its case. Without expressing any opinion on the merits of the case, we feel it proper to send the matter back to the learned Adjudicating Authority. In all fairness, granting an opportunity to the aggrieved to represent his case, he gets right to defence and that shall serve useful purpose of law following cardinal principles of natural justice. To say so, we follow the ratio laid down by the Hon'ble High Court of Madhya Pradesh in the case of Methodex Systems Limited v. Union of India - 2001 (127) E.L.T. 44 (M.P.). 7.5 The present case in hand subscribes to the ratio laid down by the Hon'ble High Court of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom an appropriate registering Authority except submitting a medical certificate from a Doctor. The ld. Adjudicating Authority is directed to seek Death Certificate from the appropriate Authority and in the event that Certificate shows the above averment, the matter shall abate. 9.2 To come to the above conclusion, we are guided by the decision of the Hon'ble High Court of Bombay in the case of Tarak Nath Gayen and Others v. Customs, Excise & Gold (Control) Appellate Tribunal and Others - 1987 (31) E.L.T. 631 (Cal.). The Hon'ble High Court held in Paras 14 to 17 of the judgment as under : "14. I am of the view that the order of penalty was imposed under Section 55 with a view to punish Debendra Nath Gayen. Section 74 creates a liability to penalty for any act or omission of a person in relation to any gold which would render such gold liable to confiscation. The liability is for penalty not exceeding five times the value of the gold or Rs. 1,000/- whichever is more whether or not such gold has been confiscated or is available for confiscation. 15. Now that Debendra Nath Gayen is dead, there cannot be any question of realizing the amount of penalty from the legal representatives ..... X X X X Extracts X X X X X X X X Extracts X X X X
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