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TMI Blog2008 (11) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... ain, and Vijai Kumar DRs, for the Respondent. [Order per : M. Veeraiyan, Member (T) (for the Bench)].- These two appeals are against the order of the Commissioner vide No. 118/MDS/2007 dated 6-7-2007. 2. Heard both sides. 3. Relevant facts, in brief, are as follows: (a) M/s. Turnkey Software Solutions No. 1 Mohamad Pur, behind Bhikaji Cama Place, New Delhi belonging to Shri Rakesh Gupta C-176 Vivek Vihar Delhi, was registered with STPI and was granted status of a 100% EOU for development and export of software to USA; they imported data communication equipments including a multiplexer (Promina), EPABX, router and Echo Canceller and their accessories without payment of duty availing exemption under Notifications 138/91-Cus., dated 20-10-91 and 140/91-Cus., dated 22-10-91. The import took place in March 1998; the duty foregone was Rs. 22,17,947/-. M/s. Turnkey Software Solutions has also taken a dedicated communication line from STPI on a monthly lease of Rs. 8 lacs per month. This leased line enabled direct link between New York and New Delhi through Sattelite. With the help of his brothers in USA. Shri Rakesh Gupta established business with M/s. Turnkey Software Solu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of witnesses on dates convenient to him starting two weeks from today so that the cross-examinations are completed within a period of one month from the date of receipt of reply to the show cause notice. We make it clear that commencement of cross-examination proceedings shall not be dependent upon the filling of revised reply to show cause notice. (iii) The de novo adjudication proceeding shall be completed and fresh order passed within a period of three months from to day." (g) In pursuance of the CESTAT's order, the Commissioner has decided the case afresh and confiscated the goods valued Rs. 2,32,96,000/- belonging to Turnkey Software Solutions and allowed the same to be redeemed on payment of a fine of Rs. 75 lakhs; enhanced the value in respect of certain consignments and confirmed duty of Rs. 39,35,735/- imposed a penalty Rs. 50 lakhs on the company. He also imposed penalty of Rs. 50 lakhs on Shri Rakesh Gupta. By the same order he confiscated goods belonging to Systech Equipment India Ltd. confirmed duty demand, imposed penalty on M/s. Systech Equipment India Pvt. Ltd. In these proceedings we are not concerned with the said findings against M/s. Systech Equipment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and none of them except Shri Rakesh Gupta retracted. 6.1 We have carefully considered the submissions from both sides. It would be appropriate to decide some preliminary issues raised by the appellant before deciding the main issues. The Commissioner, in pursuance of the order of remand by the Tribunal, has offered cross-examination of some of the witnesses. The cross-examination was not allowed in respect of persons who were former employees of the appellant and whose whereabouts were not known to the Department and to the appellant. This cannot be considered as violation of principles of natural justice. Further, we find that in respect persons offered for cross-examination, no questions were put to them on the core issues. 6.2 A submission has been made that no permission of the Development Commissioner was taken before initiating recovery proceeding against 100% EOU. The jurisdiction of the Customs Authorities and the powers to demand duty short levied/short paid/not levied are not dependent on any permission of the Development Commissioner as the same flow from the provisions of the Customs Act. If there is any violation of internal arrangement/understanding between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaken. The inspection reports of officials of STPI, MTNL and BSNL clearly indicate that 123 tines out of 125 lines of Sampark Marketing Systems were terminated at PABX of the appellants. It was found that part of amount has been withdrawn from the appellant's bank accounts in cash and deposited into the accounts of Sampark Marketing Company to enable them to pay for the large number of lines taken by them and to meet other expenses in their name. The above payment clearly supports the finding that 123 lines out of 125 lines of Sampark Marketing Systems were terminated at PABX of the appellants. 6.6 LOP was granted for specified purpose namely development and export of software; the concerned exemption notification permitted import for "the said purposes" and they were required to "use them, (the imported goods) within the unit". In the present case, goods have been used for unintended and unauthorised purposes. They have been used by Sampark Marketing Systems as well. Without going into any possible violation under other Acts, it is clear case of violation the conditions of the Notification No. 140/91-Cus., dated 22-10-91 and therefore, the goods are liable for confiscation u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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