Custom, Excise & Service Tax Tribunal
Alliance Strategies Limited vs New Delhi(Import &Amp General) on 12 June, 2020
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CUSTOMS EXCISE & SERVICE TAX APPLELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
COURT NO. II
Customs Miscellaneous Application No.50450 of 2019 in
Customs Appeal No. 54220 of 2014
(Arising out of Order-in-Original No. 28/NLB/Commr./I&G/2014 dated 5.5.2014
passed by the Commissioner of Customs (Import & General), New Delhi.)
M/s. Alliance Strategies Ltd. Appellant
A-57, DDA Sheds,
Okhla Industrial Area Phase-II,
New Delhi-110 020.
Versus
Commissioner of Customs Respondent
(Import & General) New Customs House, Near I.G.I. Airport, New Delhi.
AND Customs Appeal No. 54226 of 2014 (Arising out of Order-in-Original No. 32/NLB/Commr./2014 dated 16.05.2014 passed by the Commissioner of Customs (Import & General), New Delhi.) M/s. Alliance Strategies Ltd. Appellant A-57, DDA Sheds, Okhla Industrial Area Phase-II, New Delhi-110 020.
Versus
Commissioner of Customs Respondent
(Import & General)
New Customs House, Near I.G.I. Airport,
New Delhi.
CORAM:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)
HON'BLE MR. C.L. MAHAR, MEMBER (TECHNICAL)
APPEARANCE:
Shri Kamaljeet Singh, Advocate for the appellant. Shri Sunil Kumar, Authorised Representative for the respondent.
FINAL ORDERs NOs.50696-50697/2020 DATE OF HEARING:17.10.2019 DATE OF DECISION: 12.06.2020 2 ANIL CHOUDHARY:
In these appeals, the appellant is in appeal against the imposition of penalty under Section 112 and 114 AA of the Customs Act vide separate order-in-originals (Order-in-Original No. 28/NLB/Commr./I&G/2014 dated 5.5.2014 in Customs Appeal No.54220 of 2014 and Order-in-Original No. 32/NLB/Commr./2014 dated 16.05.2014 in Customs Appeal No.54226 of 2014).
2. The Miscellaneous application has been filed in appeal No.54220 of 2014 for amendment of the appeal praying for addition of paras Y to Z (Additional grounds), in the facts and circumstances already on record. Accordingly, this miscellaneous application is allowed.
3. The brief facts in Appeal No.54220 of 2014 are that it appeared to Revenue that the appellant have imported wireless transmitting/receiving apparatus, satellite communication equipment, etc. against the forged import licence purported to have been issued by the Wireless Planning and Coordination (WPC), Wing of the Ministry of Communication and Information Technology, Government of India, in terms of the Notification No.71-Customs dated 25.09.1953, issued under Section 19 of the Sea Customs Act, 1878, as amended by notification no.48-Customs dated 20.05.67 issued under Section 11 of the Customs Act, 1962. Further, such imported equipments were supplied to various T.V. Channels and other communication companies.
4. The appellant is engaged inter alia in providing assistance to telecommunication companies in applying and obtaining WPC licenses 3 from the Department of Telecommunication, Government of India, which is required for import of certain telephony equipments listed in Chapter 85 of the Customs Tariff Act.
5. Premises of the appellant company and its Chairman - Ashok Gupta-Chairman of M/s. Alliance Strategies Ltd., Shri Sanjay Sachdeva, CEO, ASL, Shri Jaspal Singh Choudhary, Manager, ASL and residence of Shri Amit Mahajan-Ex Manager of the appellant were searched on 6.9.2011. In the course of search under Panchnama, certain documents, lap top, computers, diary, rubber stamps of the Ministry of Communication and Information Technology, New Delhi and other rubber stamps of "D Singaravelu," Asstt. Wireless Developers, Department of Telecommunication, New Delhi were resumed. Besides this, some blank pages with rubber stamp of the Ministry of I.T and a pen drive was resumed from the residence of Shri J.S. Choudhary. From the residence of Amit Mahajan also certain other documents were resumed. Statement of aforementioned persons were also recorded under Section 108 of the Act.
6. Mr. Amit Mahajan, Ex-manager of ASL, in his statement dated 7.9.2011 inter alia stated that he worked with the appellant company as Manager-Business Development. His job profile was to interact with the broadcasters for sales and service purposes. That the company used to import broadcasting and sub-systems from many foreign suppliers, which after import were sold and installed for the end customers/broadcasters. That the imported equipments were such as; DVB, MPEG encoders/decoders, Multiplexers, etc. were to be imported through WPC import licence, which is issued by WPC of DOT. That the 4 major customers of the appellant were ETC Network, MH one TV Net work, etc. That the appellant used to provide the service by following three types of import procedures:-
First procedure - M/s ASL used to import the equipment in their own name and then sell it to the end customer alongwith installation of the same;
Second procedure- the end customer used to import the equipment directly in their own name and M/s ASL used to provide technical consultancy and installation services to the end customers; Third procedure- based on High Sea Sale basis, in which M/s ASL used to order the equipment from foreign suppliers and act as importers till the time goods/ equipment reached Airport Authority of India, a high sea sale agreement was signed between M/s ASL and the end customers/ broadcasters. This agreement was then submitted to the Customs Department and the Importer's name was changed from M/s ASL to that of the end customer.
7. He further stated that in the 2nd and 3rd procedures, import licence used to be in the name of end customers/broadcasters. He further stated that in the course of his duties, he could learn that "Shri Sanjay Sachdeva, Director‟ and CEO of the appellant was involved in preparing fake or forged WPC licences. In one instance, when the licence was filed in the case of import by the appellant, the customs officer got suspicious. Thereafter on seeing the file of import licence in the office, he could notice that many licences were having different stamps and bearing varying signatures of the same officer.
8. Statement of Shri Ashok Gupta, Chairman of the appellant was recorded, wherein he stated that day-to-day operations of the appellant company were looked after by Shri Sanjay Sachdeva, the whole time Director and CEO. He was looking after the finance. The Consultancy and Integration Business was looked after by Shri Jaspal Choudhary, Manager (Liaison), Ms. Anuradha Diwan, Asstt. Manager 5 (Regulatory), Mr. Digvijay Singh, Asstt. Manager and Shri Amit Bhushan, Asstt. Manager (Finance & Accounts), all were reporting to Shri Sanjay Sachdeva. The appellant company used to make importation of equipments based on the order placed by the Indian vendors, and the Equipment Type Approval (ETA)/WPC licence used to be procured by them or through clearing agent. That once the WPC licence was arranged, it was sent to the Clearing Agent (CHA) for taking necessary action. That on several occasions, they only arranged for obtaining ETA/WPC licence for various Indian clients. That their role was restricted to prepare all the applications, who after getting it signed uploaded on the DOT server, submissions of the original application with the authority and obtaining the licence after completing all the formalities in this connection.
9. Ms. Anuradha Diwan, the Asstt. Manager, in her statement stated that prior to 2008, the application for license was filed in hard copy with the DOT containing the necessary details of the items to be imported along with technical literature and filing fee. Usually, the WPC license was issued in about 8 to 10 days from the date of application, which was communicated personally. From 2008, they used to submit the application online at DOT site giving the details of items to be imported and other details as prescribed and furnished on the website of the department, a link number was generated. A print out of ID NO.
(generated) used to be taken along with the print out of the list of items to be imported. The list of items also indicate the corresponding ID Nos. Thereafter, the print out along with technical literature of the items be imported and other prescribed details, used to be filed in hard 6 copy personally to the DOT. After about 10 to 15 days, DOT issued, the WPC licence, which was usually collected personally.
10. During the course of investigation, the copies of the WPC licences available in their files, resumed from the office of the appellant under Panchnama dated 6.9.2011, were forwarded to the Department of Telecommunication, WPC Wing, New Delhi to verify the genuineness of the same. Inquiries were also conducted with M/s. Aricent Technologies (Holdings) Ltd., Gurgaon with respect to the WPC licences obtained by them through the appellant. M/s. Aricent Ltd. submitted the details of the WPC licences along with the relevant bills of entry and other documents. The inquiries conducted with the DOT and Ms. Anuradha revealed that, M/s. Aricent had imported wireless transmitting and or receiving apparatus on the basis of the WPC import licences purported to have been issued by the DOT, which were confirmed by the DOT as not genuine.
11. In the course of investigation, the statement of Shri Inderjeet Singh, Manager of M/s. Aricent Technologies had been recorded, who, inter alia, stated that he was working as Manager Corporate (Procurement) since April, 2010 and their company is M/s. Aricent Technologies, NIC, USA. They imported all types of IT equipments. They imported and interacted directly with IT vendors located abroad. For some of the items, WPC import licence was required, which were issued by the DOT. That till 2008, they have procured the WPC licence through the appellant. For their requirement, they used to interact with M/s. ASL through email. M/s. Alliance charged a fee of 7 Rs.10,000/- plus Rs.500 (DOT fee) plus service tax for which they received an invoice and payment was made by M/s. Aricent by cheque.
12. On being shown, the following three licences:-
i. Import Licence No.NR-IMP/912 dated 10.04.2008 ii. Import Licence No.NR-IMP/1539 dated 13.08.2008 iii. Import Licence No.NR-IMP/1440 dated 05.08.2008 Licence with verification report of the DOT, mentioned that the above three licences are not genuine, Shri I. Singh stated that they were not aware about any forged licences. These licences were received from Alliance in the normal course of business. The location of the imported equipments installed were mentioned in the list submitted by him, that the appellant used to take 20 to 30 days for obtaining and supplying the import licences. That in most of the cases even after procurement the licence through M/s. Alliance, they had actually not imported the equipments due to non-execution of their project assignment.
13. In his further statement dated 19.07.2012, Shri Sanjay Sachdeva, CEO of the appellant, inter alia, stated that he has been shown copy of the import licence No.NR-IMP/912 dated 10.04.08, No.NR-IMP/1140 dated 5.8.08 and No. NRP-MP/1539 dated 13.08.2008 purported to have been issued by the DOT to M/s. Aricent, and confirmed that these WPC licences/approval forged by the appellant and supplied to M/s. Aricent. That the licences were forged by Mr. Jaspal Choudhary, Manager (Liaison) of appellant as per direction of Shri Ashok Kumar Gupta, Chairman and himself. Shri Sanjay Sachdeva also admitted the statement of Amit Mahajan, Jaspal 8 and Ms. Anuradha Diwan, as regards the forging of WPC licences done by them.
14. Shri Jaspal Choudhary in his statement dated 24.07.2012 after going through the print out of the documents /data retrieved from his lap top under Panchnama dated 23.07.2012, which were merely invoice issued to clients, proposal forwarded to the clients, notification issued by WPC Wing of the Ministry of Communication and Technology etc. It was further stated that the import licence and covering letters mentioned above were forged before issuance. Further, it was stated that before submitting the application for import licence, an online ID is required which can be generated only when the demand draft no. for the requisite fee had been fed/given in the system. That they used to feed any D.D. number (genuine DD) on the basis of the DD‟s issued in a particular month from a particular bank.
15. Further, in terms of the notification no.71/Customs dated 25.09.1953 issued under Section 19 of the Sea Customs Act, 1878, as amended vide notification no.48-Customs dated 20.05.67 under Section 11 of the Customs Act, 1962, the import of an apparatus for Wireless Telegraph into India is restricted in the case of transmitting apparatus, and of receiving apparatus, if incorporated in a single unit with transmitting apparatus, to persons, who have been licensed to import such apparatus by the Ministry of Communication.
16. It further appeared that one of the clients of the appellant, (M/s. Aricent Technologies (Holding) Ltd.) have imported several apparatus/equipments for wireless communication vide bills of entry during April, 2008 to October, 2008 as per the documents seized vide 9 Panchnama dated 27.01.2012. However, no proper WPC licence for import was produced at the time of import. Thus, there appears violation of Section 111(d),(m), read with Section 112 (a)(b) of the Customs Act, 1962, by M/s. Aricent Technologies by importing the goods valued at Rs.99,65,131/- under forged WPC import licences by intentionally mis-declaring, and thus the goods are liable to confiscation. Accordingly, show cause notice dated 26.07.2012 was issued as to why the seized goods valued at Rs.99,65,131/- were imported under the bills of entry, as follows:-
"i)The seized goods valued at Rs. 99,65,131/- (Rs. Ninety nine lakhs sixty five thousand one hundred and thirty one only) imported under B/E Nos. 222730, dated 17.09.2008, 975017, dated 25.4.2008 and 248755 dated 14.10.2008 should not be confiscated under Section 111(d) & 111(m) of the Customs Act, 1962 on the grounds discussed above.
i) Penalty under Sections 112(a), 112(b) and 114AA of the Customs Act, 1962 should not be imposed on them on the grounds discussed above.
31. M/s Alliance Strategies Ltd., New Delhi, Shri Ashok Gupta, Chairman, Sanjay Sachdeva, CEO, Amit Mahajan (Manager - Business Development), Jaspal Singh Chaudhary and Ms. Anuradha Diwan of M/s Alliance Strategies Ltd., New Delhi were required to show cause to the Commissioner of Customs (Import and General), New Custom House, near IGI Airport, New Delhi as to why penalty should not imposed upon them under Section 112(a), 112(b) and 114AA of the Customs Act, 1962.
32. M/s DHL Pvt. Ltd., (earlier known as M/s DHL Lamuir Logistics Pvt. Ltd.) DLF Infinity, Tower A, 1 st floor, DLF Cyber City, Phase-11, Gurgaon, were required to show cause to the Commissioner of Customs (Import and General), New Custom House, near IGI Airport, New Delhi as to why penalty should not imposed upon them under Section 112(a), 112(b) and 114AA and 117 of the Customs Act, 1962"
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17. The show cause notice was on contest confirmed by order-in- original dated 05.05.2014 No.28/NLB/Commr/I &G/2014 confirming the proposed confiscation with option to redeem on payment of fine of Rs.20 lakhs. Further, a penalty of Rs.10 lakhs was imposed under Section 112. Penalty of Rs.50 lakhs on this appellant under Section 112 with equal amount under Section 114 AA. Further, penalty under Section 114 AA and 112 of the Customs Act was imposed on others as follows:-
Name & Designation Penalty under Penalty under
Section 114AA Section 112
Ashok Gupta, Chairman, ASL Rs. 5 Lakh Rs. 5 Lakh
Sanjay Sachdeva, CEO, ASL Rs. 5 lakh Rs. 5 lakh
Jaspal Singh, Manager, ASL Rs. 5 lakh Rs. 5 lakh
Amit Mahajan, Ex-Manager, ASL Rs. 2 lakh Rs. 2 lakh
Anuradha Diwan, AM, ASL Rs. 2 lakh Rs. 2 lakh
18. Being aggrieved, these appellants and others filed the appeals
before this Tribunal.
Appeal No.54226 of 2014
19. Similarly, the appellant had also provided WPC licenses for import to M/s. Hughes Communication India Ltd., Hughes Network Systems India Ltd. and vide order-in-original No.32/NLB/COMMR /2014 dated 16.05.2014 passed by the Commissioner of Customs (Import & General), the goods valued at Rs.3,13,06,967/- were confiscated with an option to redeem on payment of fine of Rs.60 lakhs. Further, penalty of Rs.15 lakh each was imposed under Section 112, on M/s. Hughes Network Systems Ltd. Further, penalty on this appellant and its Director/employees was imposed as follows:-
Name Penalty under Penalty under
Section 112 (Rs) Section 114AA
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(Rs)
M/s. Alliance Strategies Ltd. 1,50,00,000/- 1,50,00,000/-
Ashok Gupta, Chairman, ASL 20,00,000/- 20,00,000/-
Sanjay Sachdeva, CEO, ASL 20,00,000/- 20,00,000/-
Jaspal Singh Chaudhary, 20,00,000/- 20,00,000/-
Manager, ASL
Amit Mahajan, Ex-manager, 6,00,000/- 6,00,000/-
ASL
Ms.Anuradha Diwan, Asstt. 6,00,000/- 6,00,000/-
Manager, ASL
20. Being aggrieved, these appellants and all others filed appeals before this Tribunal. This Tribunal earlier took up the appeals of others, except this appellant, which were heard on 3.8.2017 and vide Final Order No.9951-995177 dated 18.8.2017, this Tribunal held that M/s. Aricent Technologies (Holdings) and M/s. Hughes Communication India Ltd. have used forged licenses for import of communication/transmitting equipments and they cannot take shelter of the discrepancy on the part of M/s. Alliance Strategies Ltd. (this appellant). It is primary responsibility of the importer to produce valid licenses for import. Further, it was observed that importing companies were required to be vigilant before using the import licenses procured through this appellant and accordingly, confirmed the order of confiscation and penalty against the importing companies. So far the employees and Directors of this appellant company, whose appeals were also taken up together, their appeals were also dismissed on the observation that they have indulged in forgery and conspired in providing forged licences to the importers.
21. Ld. Counsel for the appellant, assails the impugned orders submitted that the two impugned orders dated 5.5.14 and 16.5.2014 12 against the appellant company and its employees/Directors. This Tribunal without hearing the appeal of the appellant company, the appeals of the employees/Directors has been disposed of, leading to mis-carriage of justice, as stated herein above. It is pertinent to mention that the submissions and grounds taken in these appeals by the appellant company were not raised in appeals of Director /employees and could not be considered by this Tribunal, while passing the earlier final order along with the importers‟ appeal.
22. Thus, no findings were given by this Tribunal relating to this appellant as their appeals were not listed for hearing.
23. He further submits that the entire case of the Department is based on the sole ground that the WPC licenses were forged/faked by this appellant. Further, as the issue relates to providing of fake/forged WPC licence by this appellant, they are the main party in the whole issue. Thus, without hearing these appellants, the earlier final order of Tribunal dated 18.08.2017, in the case of importers and others, have got no precedential value, so far these appeals are concerned. The importers have taken the stand that they were nowhere involved in any activities of alleged forgery of the WPC import licence, and they were under the bonafide belief that the licences were genuine. Further, the importers as is evident from para 8 of the earlier final order, did not make any submission to assail the allegation that the licences were forged. Naturally, it is this appellant against whom the main allegation lies. It is further urged that on the strength of the disputed WPC licences, the importing companies have imported various equipments, but so far some of the equipments are concerned, no WPC licence is 13 required. All the consignments were cleared by the Customs officers after proper scrutiny and verification of the documents including the WPC licences. No objection was raised by the Customs officers at the time of clearance of the goods.
24. Show cause notices were issued to this appellant, alleging that the importer company had imported wireless telephony equipments against the forged and fabricated WPC licenses, rendering the goods liable for confiscation. It was further alleged that this appellant had arranged the said forged and fabricated licenses, thereby rendering them liable to penalty. Ld. Commissioner failed to appreciate that the WPC licences were valid and were procured on the basis of the application filed online, after following the prescribed procedure. At the time of customs clearance of the goods imported against licence, the WPC licenses were subjected to proper scrutiny and verification.
25. This Tribunal has placed reliance on the statement under Section 108 of the various persons, particularly the Directors and the employees of this appellant, to hold that the licenses in question were forged. However, truth and veracity of the statements have not been established as required under Section 138 B of the Customs Act, requiring examination and cross-examination of the witnesses of the Revenue. This appellant and the employees and Directors in their written reply to the show cause notice, had contended that the statements were tendered under duress, threat or force, including arrest, and were not voluntary. The ld. Commissioner has in violation of the provisions of Section 138 B, neither cared to examine the witnesses of the Revenue nor offered them for cross examination, 14 observing that none of the witnesses have retracted their statements recorded during investigation, and thus, the ground taken is by way of an afterthought. Further, observing that the contention of the appellant that the licences provided by them to the importers were genuine and that some of the equipments imported did not require any WPC licence at all, is not based on facts, as all such WPC licenses are alleged to be forged. Further, reliance was placed on the ruling in the case of Veera Ibrahim Vs. State of Maharashtra (1976) 2 SCC 302: AIR 1976 SC 1167. It was further observed that the Department is not required to prove its case with mathematical precision and can rely upon the preponderance of probability principles. So far the request for cross examination of noticee nos.2,3,4 and 7 made in their written submission is concerned, and also the cross examination of the officers of the WPC- DOT, DRI is concerned, this opportunity was not sought by them during personal hearing. Hence, the same was ignored as the said prayer was not repeated at the time of personal hearing. It was further observed that so far the genuineness of the WPC licence is concerned, provided to the importers, it was confirmed by the DOT that the licences did not appear to be genuine as per their records. The ld. Counsel further contends that the ld. Commissioner failed to appreciate that the import licences in question were genuine and valid and were procured on behalf of the importer by this appellant, on the basis of the application filed online and after following the prescribed procedure. Further, DRI had addressed a letter dated 3.10.2011 to the Asstt. Wireless Advisor, WPC Wing of DOT, and requested them to verify the genuineness of the WPC licences as per licence nos. and 15 date mentioned in the said letter dated 3.10.2011, on the following lines:-
"Please find enclosed copies of the WPC licence issued to Alliance Strategies Ltd. by the Ministry of Communication and IT Department and Tele-communication , WPC Wing, New Delhi for import of wireless transmitting and or receiving apparatus. You are requested to verify the genuineness of the same and send a report at the earliest. The name of the importer and licence nos.
This issues under powers vested under Section 108 of the Customs Act, 1962. In reply, the Asstt. Wireless Advisor, WPC Wing, DOT by his letter dated 17/18.10.11. have replied as follows:-
"I am directed to refer to your letter No. DRI F.No. 338/XVII/49/ 2011-GI/dated 13.10.2011 on the above mentioned subject and to state that the licence copies received from you, vide your earlier letter dated 03.10.2011, has been matched with the Dispatch Register entry. Copy of which made available to this office by DRI based on such matching it has been found that all licenses mentioned in para 1 i.e. M/s Alliance Strategies Ltd. and para 2, M/s Tata Elxsi Ltd, Bangalore have no entry in the Dispatch Register. It is hence concluded that these licenses do not appear to be genuine. This has been endorsed on the License copies as required by you.
2. Similar observation as in Para 1 above is applicable to licenses at Sl. No. 4 (xixi) to 4 (xxii), 4 (xxv), (xxvii) to 4 (xxix). These licenses do not appear to be genuine and the same has been endorsed on these license copies.
3. Similar observation as in Para 1 above is applicable to licenses at Sl. No. 5 (xi) and 6 Ix). These licenses do not appear to be genuine and the same has been endorsed on these license copies.
4. Licenses listed at Sl. No. 4(i) to 4 (iv), Sl. Nos. 5(xx) to 5 (xxiv) and Sl. No. 6 (i) to 6 (xiv) of your letter dated 03.10.2011 have been issued from WPC Wing, 6th Floor, Sanchar Bhyavan, 20, Ashoka Road, New Delhi-110001 and may these may kindly be verified from the office.
5. All other licenses in the list has been found in the Dispatch Register and hence it may be concluded that these licenses are genuine.
Kindly acknowledge the receipt."
(emphasis supplied).
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26. Ld. Counsel further states that from the aforementioned letter of the Asstt. Wireless Advisor dated 17/18.10.2011, it is evident that the DOT has done matching of the zerox copies of the licenses supplied, along with copy of the despatch register, both supplied by DRI. There is no categorical finding, whether the said licence numbers exists on the record of the DRI or not. Further, the report is vague as it is stated
- „licences do not appear to be genuine‟ , as the said licences were not found to be entered in the despatch register. Further, he submits that merely because the documents are not found in the despatch register, it does not conclusively follow that it is not genuine. No inquiry has been made from the issuing authority i.e. the officer under whose hand and seal, the licences were issued. It has not been ascertained if there were any other despatch registers maintained in the DOT. Thus, the allegation of Revenue is vague and it cannot be held that the licences in question are fake.
27. It is further urged that no forensic examination of the licence(s) was carried out to ascertain the genuineness. On this aground also, the allegations are rendered vague and not sustainable. It is further urged that unrelied documents, which were seized, were not released and/or given to the appellant in spite of specific request. This also resulted in mis-carriage of justice. Ld. Counsel relies on the ruling in the cases of (i) Novamet Industries - 2008 (227) ELT 363 (All.),
(ii) Methodex Systems Ltd. - 2001 (127) ELT 44 (M.P.) and (iii) Saraswati Rubber Works (P) Ltd. - 2006 (205) ELT 993 (T- Delhi).
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28. It is further urged that although DRI has resumed all documents/files pertaining to the licence under dispute from the DOT, however, neither copies of such documents have been provided nor any inspection permitted. Thus, proper opportunity of hearing has not been given, resulting in mis-carriage of justice.
29. It is further urged that in spite of request of the appellant for cross-examination of persons/officers, whose signatures appeared on the disputed licenses and of the officers, who have given opinion that the said licences are fake. It was required to obtain the confirmation from the officers, who have issued the licences or alternatively obtain the opinion of the forensic experts, to ascertain the genuineness of the licences in question. Thus, in absence of such exercise, the allegations of the Revenue are vague and not sustainable.
30. Further, it was also urged that no adverse opinion can be drawn against the appellant merely on the allegation that two rubber stamps were recovered from their office, as the stamps were not found affixed on the licences in dispute. Further, no reliance ought to have been placed on the statements of Shri Sanjay Sachdeva and Shri Jaspal Choudhary, as their statements are wrong and contrary to the facts of the case. Moreover, in spite of prayer, the truth and veracity of the statement has not been established by way of cross examination.
31. It is further urged that admittedly the appellant has received only Rs.10,000/- as professional charges for pursuing in obtaining each WPC licence for their clients, which is inclusive of charges for filing online application, completing all other formalities and taking delivery of the licences from the DOT. Admittedly, there is no connivance 18 between the appellant and importer for preparing and delivering fake/forged WPC licences. Admittedly, till date, no criminal proceedings or charge sheets have filed against the appellant in the matter. Further, none of the importers, for whom the appellant procured WPC licences, has initiated any criminal proceedings against the appellants in the matter. The ld. Counsel further urges that under the facts and circumstances, the whole case of Revenue lies on the inculpatory statements of the co-noticees, some of whom are directors/employees. Ld. Counsel states that these statements have got no evidentiary value in absence of following the mandate of Section 138 B, which requires recording of the statement in the adjudication proceedings and thereafter allowing the appellant to cross examine the witnesses of the Revenue. Reliance is placed on the Hon‟ble Supreme Court‟s decision in the case of Andaman Timber Industries - 2015 (324) ELT 641 (SC) and also the Delhi High Court‟s decision in the case of Basudev Garg - 2013 (294) ELT 353 (Delhi). Further, in his statement, Shri Jaspal Singh Choudhary, Manager has allegedly admitted that 62 licences are forged. However, out of this list, only three licences of Aricent Technologies and two licences in respect of M/s.UGC Communication Ltd. and UGC Network Systems India Ltd. are alleged to be not genuine in the show cause notice. Thus, admitted position is that out of 62 documents/licenses, Revenue has found 57 to be genuine, even though Shri J.S. Choudhary has stated otherwise. This establishes beyond iota of doubt that the statements of Shri J.S. Choudhary is not true and hence, casts a serious doubt about the voluntary nature of the other statements as well. 19
32. Ld. Counsel further refers to the precedent decision of this Tribunal in the case of M/s. Ingram Micro India Pvt. Ltd. in Customs Appeal No.50259 of 2019, wherein a Coordinate Bench vide Final Order No.51067 of 2018 dated 8.8.2019, under the similar facts and circumstances, it has been held that it is the prima facie responsibility of the importer to make true and correct declaration and to file genuine documents for clearance. This Tribunal held that the „Equipment Type Approval‟ (ETA) certificates produced by the importer were found to be fake on verification. Although the ld. Counsel had argued that they have not indulged in any forgery in obtaining the ETA certificates and they have engaged the third part for the purpose of obtaining such certificates from the competent authority. This Tribunal held that once the ETA certificate is found to be fake, the importer cannot escape the liability for contravention of Section 111(d), which states that the goods imported in contravention of the Customs Act or any other law for the time being in force would be liable to confiscation. This Tribunal allowed the appeal in part by reducing the penalty under Section 112 (d)(ii) of the Act.
33. Opposing the appeal, ld. Authorised Representative for the respondent/Revenue urges that the miscellaneous application filed by the appellant seeking to bring on record the additional grounds of appeal should be rejected. He further urges that an appeal is to be decided within the four corners of the impugned order and relies on the ruling of the Apex Court in the case of Dempo Engg. Works Ltd. 2015 (319) ELT 359. He further relies on the precedent Final Order of this Tribunal being Final Order No.55965-55977/2017 dated 20 18.08.2017, (which has been noticed hereinabove), in the case of batch of appeals by Aricent Technologies Holdings Ltd. and others. He further draws attention that the appeal filed by the Director of appellant-Shri Ashok Gupta, against the earlier final order of Tribunal has been dismissed by the Hon‟ble Delhi High Court 2019 (365) ELT 784 (Delhi). Accordingly, he prays for dismissal of these appeals.
34. Having considered the rival contentions, we find that the main allegations of the Revenue are based on - (i) statements, (ii) report of the Asstt. Wireless Advisor DOT dated 18.10.2011, (iii) recovery of two rubber stamps of the WPC Wing of the DOT. So far the additional grounds of appeal are concerned, we find that the same has been raised based on the facts and circumstances already on record. In this view of the matter, the miscellaneous application is allowed and the additional grounds are admitted for consideration.
35. The facts in the case of Dempo Engineering Works Ltd.(supra) are totally different and hence the ratio is not applicable in this case.
36. We find that WPC approval required for import of various kinds of wireless functionalities, such as Radio, etc. is required for the purpose that the equipments imported or marketed in India must confirm to the technical specifications as prescribed by Government of India and therefore, equipment type approval (ETA) Certificate from the Wireless Planning and Coordination Wing (WPC) wing of Ministry of Communication is required for valid importation or manufacturing or marketing purpose. We find from the entire investigations and impugned order-in-original that Shri Jaspal Singh Choudhary, Manager 21 has stated that WPC approvals in around 62 cases had been forged, however, investigation agency found that only in 5 cases, the required WPC approval was not from authorized department but was prepared and forged by concerned executives of the appellant firm. It emerges from the various statements, enquiries made with WPC wing of the Ministry of Communication that certain WPC approvals were not appropriately issued and were forged and such approvals have been used for obtaining clearances of import consignments. It is a matter of record that the concerned importing firm have already been penalized for such lapses. We find that though the WPC approvals were not appropriately issued, the investigations have not brought out categorically whether the equipments imported and cleared on the strength of such forged WPC approvals were in violation of technical norms prescribed for such equipment for importation or not. We also find that no findings in this regard have also been given in the impugned order-in-original. We also take note of the fact that for the equipment which basically meet the technical specifications, the WPC approval were provided as a matter of routine and the appellants have actually been obtaining the required WPC approval from the concerned department but this fact also does not absolve the appellant from the omissions and commissions which have been committed by them in forging the WPC approval. This fact however, indicate that there have been omissions and commissions on the part of the appellant, in few cases. However, there does not appear to be any grave amount of mischief in doing such omissions and commissions. Taking these facts into consideration, we take a lenient view in imposing penalty on the appellant and accordingly, the penalty on the appellant under Section 22 114 A is set aside and the penalty under Section 112 of Customs Act, 1962, is reduced as follows:-
Sl. Description Under Section 112 Under Section 114 No. AA
1. Appeal No. 54220/2014 Imposed 50,00,000/- 50,00,000/-
Reduced to 2,50,000/- Set aside
(Repees Two Lakhs
Fifty Thousand only)
2. Appeal No.
54226/2014
Imposed 1,50,00,000/- 1,50,00,000/-
Reduced to (Rupees 7,50,000/- Set aside
Seven Lakhs Fifty
Thousand only)
37. Thus, the appeals are allowed in part. Miscellaneous Application is also disposed as allowed.
[Order pronounced on. 12.06.2020] (ANIL CHOUDHARY) MEMBER (JUDICIAL) (C.L. MAHAR) MEMBER (TECHNICAL) CKP