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TMI Blog2024 (3) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... up together for disposal. 2. The brief facts of the case are reproduced for ease of reference. The appellant obtained an Advance Authorisation for export of garments under the category of textile general and were entitled to import raw material which was to be used in the manufacture of the export products. On specific intelligence that fabrics imported under the above Advance Authorisation were being diverted by the importer for sale in the open market, search was conducted by DRI officials on 15.10.2013, and imported goods were seized, on the reasonable belief that there was violation of condition no. 14 of the Advance Authorisation No. 3010093690 dated 07.05.2013 which indicated the factory address for the processing of the imported raw material as Baddi, HP. Subsequently, investigations were conducted and statements were recorded. On conclusion, show cause notice dated 01.04.2014 was issued, and thereafter a corrigendum dated 11.05.2015 was issued. A second show cause notice dated 06.06.2018 was issued. Both the notices were adjudicated by the impugned order. Being aggrieved by the impugned order, the appellants have filed the appeals before the Tribunal. 3. Learned Counsels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Co. Ltd. under Bill of Entry No. 009152 dated 12.09.2013. Further, the learned counsel contended that penalty under section 114AA of the Customs Act, 1962 could not have been imposed on the appellant. The learned counsel stated that duty cannot be demanded from Shri Ajay Goyal, hence the impugned order regarding the appropriation of Rs.52,04,263/- was incorrect. The learned counsel relied on several decisions to submit that it is established principle of law that duty cannot be demanded jointly or severally. 4.3 The learned Counsel appearing for Pawan Kumar Seth, Manager of Puneet Enterprises stated that his role was restricted to the instructions given by the owner and he had purchased the goods from local market from Mr. Ajay Goel in cash and therefore, imposition of penalty under Section 117 of the Customs Act is bad in law. He relied on the following decisions: 1. M J Joshi vs CC, Chennai [2010 (258) ELT 460 (Tri- Chennai)] 2. M Renganathan vs CC, Chennai [2009 (235) ELT 860 (Tri-Chennai)] 3. Bhola Singh vs CC [1993 (66) ELT 105] In the light of these submissions, impugned order is prayed to be set aside and appeals are prayed to be allowed. 5. Learned Authorised r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hows that no goods were found. He further stated that thus all the Bs/E where goods have been seized for which demand has been raised in the Annex A to Show Cause Notice dated. 06-06-2018 have been accounted for to prove that the impugned goods have been diverted. As regards the past consignments, the learned Authorized Representative submitted details of Past Bs/E and stated that the imported goods were diverted into open market, without using the same in export goods, as was evident from the fact that the appellant colluded and connived with Shri Manish Suneja to act as his partner in the offence in the disposal of the imported goods in open market at market rates. With regard to the ex-bond B/E No. 09152 dated 12.09.2013, the learned Authorized Representative submitted details of the impugned goods which were imported by M/s Fever India Ltd. vide BE No. 2864292 dated 31.07.2013, and were re-warehoused and subsequently the same goods were cleared by the appellant (Candex Chemical Fibres Co. Pvt. Ltd.) duty free vide B/E No. 09152 dated 12.09.2013 on the strength of Advance Authorization No. 3010093690 dated 07.05.2013. After clearance, the subject goods had been delivered at Grea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 1.08.2019 held as follows: "12. Coming to the aspect of violation of natural justice, it has way back been listed by Supreme Court in Kanungo & Co. Vs. Collector of Customs, Calcutta and others reported in 1983 (13) E.L.T. 1486 (S.C.) wherein it was held that principles of natural justice do not require that where the show cause notice set out of the material on which the Customs Authorities had relied and it was for the appellant to give a suitable explanation, persons who had given information should be examined in presence of the appellants or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. It was clarified that formal cross-examination was procedural justice and principles of natural justice did not require that there should be a kind of formal cross examination. It was held that natural justice certainly includes that any statement of person before it is accepted against somebody else that the person should have an opportunity of meeting it whether by way of interrogation or by way of comments and assailing as the party charged as a firm and reasonable opportunity to see comment and criticisms. The evidence, statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13, we note that impugned goods had been imported by M/s Fever India Ltd. vide BE No. 2864292 dated 31.07.2013 which were re-warehoused and subsequently same goods were cleared by the appellant (Candex Chemical Fibres Co. PVt. Ltd.) duty free vide BE No. 09152 dated 12.09.2013 on the strength of advance authorization No. 3010093690 dated 07.05.2013, which was thereafter diverted to open market. This again is corroborated by several statements and the other corroborative evidences, as discussed in the findings. We have no hesitation to agree with the conclusion arrived at by the adjudicating authority that the impugned goods have not been delivered at the factory premises of the actual user as mentioned in the condition sheet of the Advance Authorization. The Advance Authorization issued to the appellant by DGFT, Ludhiana has been misused to clear the said goods without payment of duty. 6.4 As regards the undervaluation of imports, we find that the impugned order has relied on the declarations filed by the supplier in Hong Kong, wherein the value of the goods imported by the appellant was higher than what was declared by the appellant before the Indian Customs. Consequently, we hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional statement given before a Gazetted Officer of Customs under Section 108 of the Customs Act is a valid piece of evidence under the Indian Evidence Act, as held by the hon'ble apex Court in Romesh Chandra Mehta vs. State of West Bengal [1970 AIR 940 SC] and a lot of other decisions. Further in K.I. Pavunny Vs. Asst. Collector of Central Excise [1997 (90) ELT 241 (SC)] = 2002-TIOL-739-SC-CUS-LB, the hon'ble apex court held that - "In a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code." The Hon'ble Madras High Court in the case of Govindasamy Raghupathy [1998 (98) ELT 50 (Mad)] and the hon'ble apex court in the case of Systems & Components [2004 (165) ELT 136 (SC)] have held that - "it is a basic and settled law that what is admitted need not be proved". If we apply the ratio of these deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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