Customs, Excise and Gold Tribunal - Mumbai
Deendayal Didwania And Ors. vs Commissioner Of Customs, Airport on 9 February, 2005
Equivalent citations: 2005(184)ELT390(TRI-MUMBAI)
ORDER Moheb Ali M., Member (T)
1. These applications for waiver of pre-deposit of various penalties imposed on the applicants arose out of the order of the Commissioner of Customs, Mumbai. The applicants in C/S/2165 and 2166 are alleged to be the ones who caused unauthorised import of electrolytic copper wire rods, copper rods, electrolytic copper wire bars, linear low density polyethylene film, copper scrap and brass scrap total valued at Rs. 6,01,41,225/-. The applicants in C/S/2251 to 2253 are the company who exported the goods to India from Singapore and its two directors respectively. The department's case is that Deendayal Didwania and Navneet Kumar Didwania caused the import of the above said goods in fictitious names. It is alleged that the fictitious firms did not possess IEC code numbers. It is also alleged that the goods under import were undervalued. The Commissioner who adjudicated the case finds that the members of the Didwania family were involved in importing the goods in violation of Foreign Trade (Development & Regulations) Act, 1992 rendering the goods liable to confiscation under Section 111(d) of the Customs Act. It is further held by the Commissioner that the exporting firm and its directors were aware of the fact that they were exporting the goods to fictitious firms in India thereby abetting the import. The fictitious firms did not retire the documents pertaining to the imports nor did they clear the goods. Investigations conducted in the case seemed to have revealed that Deendayal Didwania and Navneet Kumar Didwania were the persons behind the fictitious firms. The Commissioner while adjudicating the case imposed penalties on the above said persons under Section 112(a) of the Customs Act. He confiscated the goods under Section 111(d). He found that the exporting firm from Singapore, i.e. Donald & Mcarthy Pte Ltd., not to be the owners of the goods and, therefore, rejected the request made by the company for reshipment. He also imposed penalties on the two directors, i.e. Vinodkumar Didwania and Smt. Nidhi Didwania, along with the company. Hence these applications for waiver of pre-deposit of various penalties imposed on the applicants.
2. Heard both sides.
3. The main contentions of the first two applicants are that the principles of natural justice have been violated inasmuch as cross-examination of one Mr. Dubey, whose statement was relied upon, was not allowed by the Commissioner in spite of a specific request for the same. It is contended that the Commissioner has not given any specific reason for not securing the presence of Dubey. The Commissioner also adjudicated the case in a hurry, which is in violation of natural justice and fair play. The contentions on behalf of the exporting company in Singapore and its two directors are that the Commissioner did not allow reshipment of the goods even though the goods belonged to the exporting company as the ownership had not been passed on to the importers and that penalties were imposed on the exporting firm and its directors without any evidence of involvement on their part. It is argued that the exporter had taken every precaution before exporting the goods to India. It is further submitted that the exporter and its directors were not aware of the fictitious nature of the importing firms. In these circumstances, no penalties should have been imposed on the foreign company and its directors who were operating from a foreign country.
4. We have perused the records and considered the various submissions made during the course of hearing. We observe that it is a fact that IE codes shown against the importers were non-existent. The department prima facie could establish that Deendayal Didwania and Navneet Kumar Didwania are the persons who caused the import of goods which were not only undervalued but were also imported by non-existing firms. The Commissioner imposed penalty of Rs. 1.00 crore each on Deendayal Didwania and Navneet Kumar Didwania. The applicants have not made out a strong prima facie case in their favour in the light of the evidence gathered by the department in the form of statement of the Customs Mouse clearing agent, Shvi Dubey, for complete waiver of penalties imposed on them. Insofar as the exporting company and its directors are concerned, we are of the opinion that no prima facie case has been made out against them calling for pre-deposit of the penalties imposed on them. In view of these observations, we direct that the applicants, Deendayal Didwania and Navneet Kumar Didwania, to deposit Rs. 10 lakhs each within eight weeks and report compliance on 2.5.2005. The request for waiver of pre-deposit of penalties on the exporting firm and its two directors, i.e. the applicants in C/S/2251 to 2253, is waived. Failure to deposit the amounts directed would result in rejection of the appeals of the two applicants mentioned above without any further notice.
5. Compliance on 2.5.2005.
(Operative part pronounced in court)