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TMI Blog2014 (2) TMI 1434X X X X Extracts X X X X X X X X Extracts X X X X ..... ted or not. Hence the impugned order is reversed in appeal by this Tribunal and the case is remanded back for fresh adjudication by the Adjudicating Officer under its original number. Adjudicating Officer shall determine the alleged contravention considering the evidences already recorded and by providing the opportunity to the parties to produce further evidences, if any, apart from what have been recorded in the impugned order regarding the fact as to whether the goods in question have been actually imported by the appellants or not. While determining the contravention, in case the appellants are relying on secondary evidence the reasons shall also be recorded by the. Ld. Adjudicating Officer as to whether the secondary evidence is admissible or not. The instant appeal is disposed of accordingly. This Tribunal directs the Appellants to appear before the Ld. Adjudication Officer on 20th March, 2014. - DR. S.D. SINGH, MEMBER For the Appellant : G. Suriyanarayanan For the Respondent : Ms. Smriti Pradhan ORDER S.D. Singh, Member This order of the Appellant is directed against the Adjudicating Order No. ADJ/10/AD/MHK/A/ 2002/6132 dated 18-4-2002(in short impugned order) passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement of shri Puneet K. Rungta, he also reiterated that they have submitted the photocopy of the exchange control copy of bill of entry for both the remittances and also submitted the photocopies of exchange control copy of bill of entry, highseas sale agreement, invoices bill of lading. Dena Bank vide their letter dated 22-7-2001 confirmed of having received the original exchange control copy of bill of entry pertaining to the remittance of US $54,688.98 dated 2-8-1999 and requested for time to furnish the information in respect of remittance of US $42,939.60. However, nothing was heard from the bank up to 13-08-2001. Thereafter the bank was remitted for the same vide letters dated 13-8-2001 and 03-09-2001. Dena Bank vide letter dated 21-9-2001 submitted that they have received only photocopy of exchange control copy of bill of entry for US $43,926.60 and not for US $42,939.60 as reported earlier. The importer i.e. first appellant and its partner also clarified in his statement that the remittances effected on 05-07-1999 is US $43,926.60 and US$ 42,939.60. This fact was also confirmed by the Dena Bank in the statement recorded in the File T-3/208/A/2000 that they have received th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be furnished to prove that the goods were brought in India. The fact of bringing goods in India can be established by the importer by any means. Ld. Counsel for the appellant after completing his argument on 7-11-2013 has not appeared at the time of reply by the Ld. Legal consultant, Ms. Smriti Pradhan on 8-1-2014 in spite of the opportunity. As the appeal has to be decided in accordance with the directions of the Hon'ble High court of Gujarat at Ahmedabad, preferably within the time limit specified by the Hon'ble High Court in first Appeal No.655/2013 with civil application No.2870/2013. The Hon'ble High Court of Gujarat at Ahmedabad in the said Appeal No.655/2013 in its order dated 19-9-2013, in para 8, has observed as under: In view of the above, impugned order of the Tribunal is set aside with further direction that the Appeal No. 143 of 2002 shall stand restored to the file of the Tribunal, and the Tribunal shall give opportunity of hearing to both the side and decided the appeal on merit, preferably within a period of 4 months from the receipt of the copy of this Order. Considering the facts and circumstance, no order as to cost. Office to issue the writ forthw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be proved has been lost or destroyed without fault of the party offering the secondary evidence. In this matter it is not clear from the impugned order as to whether the primary evidence i.e. original bill of entry has been lost or destroyed on the record of the bank or by the appellants. It is further not clear as to whether the appellants have any fault in loosing or destroying the primary evidence and as to whether the secondary evidence is admissible or not in this matter under the law applicable. It is also not clear from the impugned order that the opportunity, to establish by other means except by original bill of entry as to whether the provisions of section 8(3) of FERA read with section 8(4) thereof has been contravened by the appellants defacto by not importing the goods actually, has been provided to the appellants or not. In view of the judgment of Hon'ble Bombay High Court in Themis Agencies v. Union of India AIR 2007 Bom. l44 such fact may be proved by other means. The fact recorded in the impugned order that the second defendant has insisted that they have submitted the original bill of entry and not true copy has certain weight and this may be proved or disa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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