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TMI Blog1995 (5) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... y as the person in-charge and responsible for the conduct of the -business of the first appellant by invoking the provisions of sections 68(1) and (2) of the Act. These cases were taken up for hearing on the application for urgent hearing on the ground that the respondents have initiated under section 57 of the Act proceedings against the appellants though the dispensation applications as well as the appeals were still pending disposal by this Board. It is stated that the impugned order was received by the applicant on 17-3-1994 and, therefore, the appeal is within time. Dr. Shamsuddin produced the relevant file. It is confirmed from the perusal of the file that the impugned order was not delivered to the appellants earlier than 17-3-1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if they were required to pre-deposit the penalty amount. He submitted that a perusal of his written submissions, a copy of which had been supplied to the respondents, would clearly show that there is absolutely no evidence of an agreement between the appellant and the foreign supplier to the effect that the price of the scanner to be supplied to the appellant would be DM 2,00,000 and that the invoice was manipulated by increasing its value to DM 2,50,000 i.e., to include the excess amount of DM 50,000 over and above the alleged agreed price of DM 2,00,000. Shri Singh submitted that section 40-statement relied on in the SCN as also the contents of the two letters as extracted in paragraph 19 of the impugned order, on face of it, support the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been engaged in substantial export business, it cannot be believed that they were not in a position to deposit at least a part of the amount of penalty. In reply to Shri Singh's submissions regarding prima facie case, Dr. Shamsuddin admitted that the only evidence was the unsigned proforma invoice recovered from the premises of R.P. Mittal, who was apparently an intermediary in the transaction. He was, however, prepared to argue the case on merits as Shri Mahendra Singh had already given him a copy of the written submissions. 5. After hearing the parties, I found that there was a good case on a prima facieview in favour of the appellants. I, therefore, waived the requirement of pre-deposit and heard the parties further on merits. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of additional premium. A submission has also been made that the whole case of the Department is based on suspicion. He referred to several judicial dicta of the Supreme Court in support of his argument that a suspicion, however, grave it may be, cannot take the place of proof of the commission of the offence. He submitted that there is no evidence at all much less the evidence to prove beyond doubt that the appellants committed the alleged contravention and the Department failed to discharge the burden which the law imposes on it, as laid down in the case of Shand Prasad Jain v. Director of Enforcement AIR 1962 SC 1764, 1775. 7. Dr. Shamsuddin did not dispute, quite justifiably, the legal position set out in the written submission, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by Process Instrumentation in which the price of the scanner has been shown as DM 2,50,000. This shows that much before the scanner was imported by the appellant in April 1984, the price indicated to him was DM 2,50,000. This evidence ought to have been sufficient to repel any suspicion of over-invoicing at the stage of investigation itself. In any case, if the matter was to be investigated further it required a very strong evidence to establish that the price actually agreed to was DM 2,00,000. , The Department has not been able to find any such evidence. The SCN alleges that the price 'as agreed' between the appellants and the foreign supplier 'was DM 2,00,000' but strangely enough, no evidence of such agreement is forth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants' machine, the amount of commission claimed was DM 30,000. 10. The second letter referred to in para 19 of the impugned order, again, is of a date subsequent to the date of import made by the appellants. The two paragraphs extracted by the learned adjudicating officer, clearly, misled him in forming the opinion that invoice had been manipulated in the case of appellants' import by mentioning a higher price of DM 2,50,000. It must be appreciated that even if this letter gave an indication of the possibility of invoice manipulation, the inference would be of under-invoicing and not of over-invoicing. Moreover, the transaction referred to in this letter is in respect of another party and even that transaction had yet to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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