The Principal Bench of the New Delhi Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that the allegation of undue export benefit is not sustainable in the absence of corroborative evidence.
Shri Dinesh Sharma, proprietor of M/s. Balaji was in the export of textile where they have obtained IEC certificate and obtained permission for transaction in foreign exchange and have accordingly opened up current accounts in Punjab National Bank etc; they have exported fabric, apparel, made-ups to CIS countries and availed DEPB and drawback benefits.
The Commissioner of Central Excise (Adjudication), New Delhi, passed an order confirming the confiscation of goods already exported but not imposing any fine instead of the confiscation as the goods were not available for confiscation; recovery of duty jointly or severally from the exporting firms/its proprietors and/or Mr Goldy and imposing Penalties.
The Tribunal viewed that the show cause notice and the impugned order rely heavily on statements which are not corroborated and the order was issued in violation of the principles of natural justice as some appellants were not allowed to inspect the relied upon documents and some have given a very minimal time, request for cross-examination has not been acceded to by the adjudicating authority.
It was observed that the adjudicating authority failed to examine the statements in terms of section 138B of Customs Act, 1962 and the appellants have also agitated the issue of jurisdiction of DRI to issue Show Cause Notice under Rule 16/Rule 16A of Drawback Rules and Section 28 of the Customs Act,1962 relying on the judgments in the case of Syed Ali, Cannon India and others.
Mr Anil Choudhary, member (judicial) Mr P Anjani Kumar, member (technical) set aside the impugned order being not maintainable on merits as no concrete tangible corroborative evidence is brought on record to sustain the allegations that Shri Goldy was a freight forwarder/kingpin exporting in the names of various firms for claiming undue export benefits; other exporters were dummy and that the goods were overvalued.
Shri J.M. Sharma and Dr G.K. Sarkar appeared for the appellant(s) and Shri Sunil Kumar appeared for the respondent.
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