RAMMAPATI EXPORTS Vs. COMMISSIONER OF CUSTOMS (PORT), KOLKATA

JUDGEMENT

(1.) THESE Applications and Appeals have been filed by the captioned Sole Proprietorship Concern of Sri Bharat Kumar Mahensaria being aggrieved by the impugned order of the Commissioner of Customs (Port), Kolkata, dated 25 -1 -2006 and signed on 30 -1 -2006, vide which the Commissioner has held as follows : -

(2.) IT thus appeared that the glass -beads were exported at a grossly inflated price of USD 162/ - per Kg. (C&F) (approximately Rs. 7000/ -) whereas, on the basis of value at Rs. 28/ - per Kg., the value of glass -beads (weighing 7.2 MT) came to Rs. 2,01,600/ - and the resulting DEPB credit came to Rs. 40,320/ - (@ 20%) as against total credit of Rs. 1,00,75,882/ - claimed/received by the exporter. This had resulted in fraudulent availment of excess DEPB credit to the tune of Rs. 1,00,35,562/ - [Rs. 1,00,75,882/ - - Rs. 40,320/ -]. Therefore, the Commissioner is not relying upon this revelation regarding the procurement of 7 MTs of glass -beads at the rate of Rs. 125/ - per Kg. from Shri Anil Kumar Mahensaria, while arriving at the figures of valuation -claim of DEPB. When the Commissioner himself is not accepting this version of Shri Kishan Goswami, it is difficult for us to accept the same now recorded from Shri Goswami. The other aspect of his statement as regards Shri Bharat Mahensaria, the Proprietor of the appellant company having exported about 7 MTs in June, 1999 out of the said 18.2 MTs procured by him, cannot be accepted because the statement made by Shri Kishan Goswami in the beginning, as recorded in para 7.1 of the impugned Order to the effect - ..he did not have any role in export of glass -beads at any point of time by any exporter or himself. He also did not have any role in the purchase/sale of glass -beads., would be false. It is difficult to make out which part of the statements made by Shri Goswami is false. If we accept the opening paragraph as relied upon by the Commissioner, then it would be evident and clear that the statement of Shri Goswami about his procurement of 18.2 MTs of glass -beads @Rs. l25/ - per Kg., and about the export of 7 MTs out of this quantity by Shri Bharat Mahensaria, cannot be accepted. More so, when there is no material in the statement to bring forth as to how Shri Goswami derived his knowledge that Shri Bharat Kumar Mahensaria would have used 7 MTs for the exports made by him in June, 1999, the statement of Shri Kishan Goswami has also to be considered in the background of the conduct and role of this document. In para 20(ii) (c) of the impugned Order, the Commissioner has recorded the submissions of noticees that Shri Kishan Goswami was an accused in four cases registered by CBI and that being as Co -Director with the appellant -proprietor herein in a company named as M/s. Santosa Overseas Private Limited, wherein he had disputes with the appellant company over accounts of that firm and this dispute went upto the police due to animosity between the Proprietor and Shri Goswami. These statements have been recorded by the Commissioner. But the Commissioner still considers Shri Goswamis statement to be that of an impartial witness. The statements had been recorded for a long time and Shri Goswami had been reported to be inimical to the appellants interest. In fact, Shri Goswami had been given the very said notice and was granted a personal hearing. It has been observed at para 17 of in the impugned Order by the Commissioner to the effect, ...On 15 -9 -2005, Shri Kishan Goswami appeared for hearing before the Commissioner, Customs (Port) and pleaded that whatever he had to say he had said earlier and he had nothing else to say except all along he had helped the Department.. This plea as recorded by the Commissioner would indicate to us that Shri Kishan Goswami is an unreliable witness whose evidence in giving the subsequent statement as relied upon by the Commissioner as substantive new evidence, emanates out of his desire to help the Department. Such deponence and statements recorded from them lead us to reopen the case which has been arrived at in favour of the appellant company by the concurrent findings of the Commissioner, Tribunal and Apex Court, and the Rectification Application filed has since been rejected.

(3.) AS regards the other new substantive evidence of Sales Tax Way Bills and other purported evidences mentioned in paras 9, 10, and 11 of the second show cause notice and para 9 of the Order impugned, the same pertains to a period of March, 1999. The present exports were made in June, 1999 and there is no material on record to relate the export of the goods obtained/mentioned in these documents by the present exporters. In fact, the only evidence relied upon in the second notice is the statement of Shri Kishan Goswami relating to the goods of 18 MTs under export obtained from Shri Anil Kumar Mahensaria, which has not been accepted by the Commissioner adjudicating the present proceedings and has been found to be of no evidentiary value. Therefore, no evidentiary value as regards the present proceedings can be ascribed to these documents for the exports in the present case effected in June, 1999. Once it is found that no fresh material/evidence exists which can be relied upon, to reopen the charge of over -valuation settled in favour of the appellant company by the concurrent findings of the Commissioner, the Tribunal and the Supreme Court, the proceedings initiated ab initio by the issue of the second show cause notice and the Orders pursuant thereto, have to be not permissible and not upheld.