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TMI Blog2025 (2) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, if the Department wanted to rely upon the statements recorded from them and the documents submitted by them, then the Department should have allowed cross examination of all those persons. In stead, cross examination only one person by name Shri Arup Bandhu Guha was conducted. Thus, the statements recorded and documents submitted by all persons, other than Shri Arup Bandhu Guha, are not admissible as evidence in the adjudication proceedings as they have not fulfilled the tests prescribed in Section 138B of the Customs Act, 1962. By relying on the decision of the Hon'ble Calcutta High Court in Ajay Saraogi Vs. Union of India [2023 (9) TMI 733 - CALCUTTA HIGH COURT] it is held that the statements given and documents recovered from those persons who have not been cross examined, cannot be relied upon in the adjudication proceedings in this case. Regarding the statements recorded and the documents submitted by Shri Arup Bandhu Guha, whose cross examination was conducted, it is observed that during the cross examination Shri Guha has given vague and unclear answers to the questions put by the appellants. Regarding the origin of the goods, we observe that the appellants have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vity "BEPL"),inter alia, made import of Ten (10) consignments of PVC Flex Banner in Rolls / PVC Sheeting in Rolls(Flex Banner) of Malaysian Origin falling under Customs Tariff Item Nos.39209932 / 39201012 / 39204900 from an overseas supplier by name, Topaz Plastic Industries (M), SDN, BHD, Malaysia, during the period from December, 2012 to June, 2013. The business affairs of the appellant companies, viz. SOPL and BEPL, have been looked after by Sri Sunil Kumar Agarwal, Appellant no. 3 herein, who was director of SOPL and father of Sri Subham Agarwal, one of the directors of BEPL. 2.1. Out of said 10 Consignments, seven consignments were imported by SOPL at Kolkata / Haldia Port, one consignment was imported through Chennai Port and the balance two Consignments were imported by BEPL at Kolkata / Haldia Port. Out of the said 10 consignments, SOPL purchased 06 consignments directly from said overseas supplier, Topaz Plastic Industries (M) and 3 Consignments on high seas sale basis from an indigenous supplier, G.R. Agarwal. BEPL imported 01 consignment directly from the said overseas supplier, Topaz Plastic Industries (M) and 3 consignments on high seas sale basis from the indigenous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Agency, which processed the nine Bills of Entry of SOPL as CHA; (iv) Shri Ashish Modak, Director of Emerald Logistics Private Limited, which deals with international freight forwarding; (v) Shri Manoj, an Indian national in the employment of said overseas supplier, Topaz Plastic Industries, Malaysia, 3.2. On the basis of the above statements and the documents collected from said persons as well as appellant's bank and others, the DRI officers concluded as under: a) Shri Ashish Modak, Director of the Emerald Logistics Private Limited, submitted copy of master Bill Of Lading No. CNBOCCU13040016 dated 10.04.2013, CSHACCU13030102 dated 27.03.2013 and related house bill of lading No.PKGNNA201303124 dated 11.04.2013 and other documents. Upon scrutiny of the said master bill of lading and Bills of Entry collected from different shipping lines / freight forwarders, it was found that the said consignments of PVC Flex Banners in dispute, were actually originated from China; the containers were sent to India via Malaysia but instead of issuing one Bill Of Lading for the entire journey, two separate house Bills of Lading were issued to cover the journey between China and Malaysia and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Court, the Department presented only one witness, Sri Arup Bandhu Guha, Senior General Manger of Marine Container Services India Private Limited, for cross examination on 18.01.2017 out of the four persons, whose statements were relied upon for issuance of impugned Show Cause Notice. 4.2. By an Order dated 29.11.2017 passed in intra court Appeal being no. M.A.T. 1406 of 2017, the Division Bench of the Hon'ble Calcutta High Court was pleased to direct the authorities to provide the copy of the statement of witnesses examined by the appellant before resuming the proceedings. Accordingly, the authorities provided the statement of Shri Arup Bandhu Guha dated 18.01.2017 to appellants on 18.12.2017. 4.3. Thereafter, appellant filed a written submission dated 21.12.2017 summarising its oral submission made in the personal hearing. On 18.01.2018, the appellants wrote a letter to the adjudicating authority to communicate the formal order passed on the issues "a" to "d" mentioned in page 3 of the letter dated 21.12.2017 so that the adjudication can be taken to its logical end. The appellant submits that the adjudicating authority did not pay any heed to the said submission and passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpose penalty of Rs.9,00,000/- (Rupees Nine Lakh only) on Sri Sunil Kr Agarwal under section 112(a)(ii) of the Customs Act, 1962. (viii) I also impose penalty of Rs.10,00,000/- (Rupees ten Lakh only) on Sri Sunil Kr Agarwal under Section 114AA of the Customs Act, 1962. (ix) I order for appropriation of Rs.55,74,866/- (Rupees fifty five lakhs seventy four thousand eight hundred & sixty six only) voluntarily deposited by the importer in the course of investigation against the demand confirmed at (iii) & (iv) above." 4.5. By the said order dated 15.05.2018, the ld. adjudicating authority also passed the following orders in respect of imports made through Chennai Port: "(i) ......... ..... I refrain from confiscation (of 51 MT PVC Flex Sheeting / Banner imported by SOPL) as the said goods are physically not available for confiscation, as they were already cleared for home consumption. (ii) I confirm the duty demand from M/s SOPL in respect of Anti-dumping duty of Rs.15,06,346/- (Rupees fifteen lakh six thousand three hundred forty six only) and customs duty of Rs.1,34,965/- (Rupees one lakh thirty four thousand nine hundred and sixty five only) not paid by mis declaring the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries but to banks situated in Hongkong / New York, London. 5.1. The appellants submits that as only one witness, namely, Shri Arup Bandhu Guha, presented himself for cross examination, the statements made and documents submitted by the rest of the three witnesses should not be given any cognizance or relevance for deciding instant case in terms of provision laid down under section 138B of the Customs Act because the ld. adjudicating authority did not utter a single word as to why said witnesses could not be produced. In support of the above contention, the appellants rely upon the observations made by the Hon'ble Calcutta High Court in the case of Ajay Saraogi Vs. Union of India [(2023) SCC Online Cal 2564)] , wherein the Hon'ble Calcutta High Court observed that completing the adjudication proceedings without allowing cross examination of the persons who have given the statements and relied upon in the adjudication order would vitiate the entire proceedings, for violation of principles of natural justice. 5.2. Further, the appellants submit that Shri Arup Bandhu Guha made vague/unclear/incomplete/incorrect/self-contradictory answers to questions put by the appellants in cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty, Customs Duty, interest and penalty on all the ten consignments is patently illegal, arbitrary, without and basis and legal nexus. 5.5. In all the payment advices/swift transfer message provided by the UBI, there were four banking institutions: (a) Ordering Institution i.e. Bank of the Importer; (b) Account with Institution i.e. Wells Fargo Bank, New York remitting the money on behalf of UBI to beneficiary Institution; (c) Beneficiary Institution i.e. Wells Fargo Bank Hongkong receiving the payments from Wells Fargo Bank New York; (d) Account with institution of exporter i.e. Public Bank Berhad, Kualalumpur, receiving the payments from Wells Fargo Bank Hongkong. 5.6. The appellants state that in all the swift transfer messages, name of the overseas supplier of Malaysia was given; there is no allegation that the money was transferred to supplier appearing in the alleged master Bill of Lading; the entire payments were remitted to said overseas supplier and there is no evidence that said supplier had not received the payments remitted by the appellants. In view of said facts, the appellants contend that the impugned order demanding Anti-Dumping Duty, Customs Duty, intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from five persons as detailed in paragraph 3.1 of this Order supra. 8.2. During the course of investigation, we observe that Five Master Bills of Lading and House Bill of Lading were submitted by Shri Ashish Modak, Director of Emerald Logistics Private Limited, and One Bill of Lading was submitted by Shri Arup Bandhu Guha, Senior General Manager of Marine Container Services India Private Limited, and Four Master Bills of Lading were submitted by Shri Syamal Kumar Mukherjee, Senior Manager of Forbes & Company Limited. 8.3. Shri Ashish Modak, Director of the Emerald Logistics Private Limited, submitted a copy of Master Bill of Lading no. CNBOCCU13040016 dated 10.04.2013, CSHACCU13030102 dated 27.03.2013 and related house bill of lading No.PKGNNA201303124 dated 11.04.2013 and other documents. After scrutiny of the said Master Bill of Lading and Bills of Entry collected from different shipping lines / freight forwarders, it was alleged that the said consignments of PVC Flex Banners in dispute, had actually originated from China; the containers were sent to India via Malaysia but instead of issuing one bill of lading for the entire journey, two separate house bills of lading were i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te not introduced documents seized from Mr. Nirmal Kumar Karmakar and statement made by Mr. Nirmal Kumar Karmakar in the adjudication proceedings. Independent of such documents seized from and the statements of Mr. Nirmal Kumar Karmakar the Enforcement Directorate had to prove the charges as against the appellant, on a preponderance of probability if not beyond reasonable doubt, given the quasi criminal nature of the proceedings. Having introduced the statement of Mr. Nirmal Kumar Karmakar and documents seized from him in evidence in the adjudication proceedings, it was incumbent upon the Enforcement Directorate to allow cross-examination of Mr. Nirmal Kumar Karmakar. Not having done so, the proceedings both at the order in original stage as also in the appellate stage have been vitiated by the breach of principles of natural justice." 8.6. Thus, by relying on the decision of the Hon'ble Calcutta High Court referred above, we hold that the statements given and documents recovered from those persons who have not been cross examined, cannot be relied upon in the adjudication proceedings in this case. 8.7. Regarding the statements recorded and the documents submitted by Shri Aru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the Malay Chamber of Commerce was never verified; No independent documentary evidences excepting the so called Master Bill of Lading was brought on record by the ld. adjudicating authority. As the copy of the alleged Master Bill of Lading was unsigned and original of the said copy was never produced or examined by the authorities, we hold that the said Master Bill of Lading cannot be relied upon as an evidence against the appellants in view of Section 64 of the Indian Evidence Act,1872 read with Section 59 of Bhartiya Sakshya Adhiniyam, 2023. 8.9. Regarding the origin of the goods, we observe that the appellants have produced AIFTA Certificate of Origin, which was issued by the Ministry of International Trade & Industry, Malaysia. We observe that the investigation has not established that the said Certificates are not genuine. The investigation only alleges that the said certificates have been obtained by influence, but it is observed that the said claims were not supported by any evidence. 8.10. Regarding the payments made by the appellant to the imported consignments, it is alleged that money has been transferred to Hong Kong and not to the exporters who are located in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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