ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Original No. 120/2000 dated 30.1.2001 by which among others, the appellant has been imposed a penalty of Rs. 50,000/- under Section 112(a) and 112(b) of Customs Act. The other two persons viz., Shri G.V. Sathyanarayana, Managing Director, M/s. GVS Exports India (P) Ltd. and Shri G.V. Sankaranarayana, Director, M/s. GVS Exports India (P) Ltd. on whom similar penalties was imposed and the appeals were dismissed by this bench confirming the penalty. In the impugned order, M/s. GVS Exports India (P) Ltd. were imposed penalty of Rs. 50 lakhs and their appeal was dismissed for non-compliance in terms of 125E of the Customs Act. The allegation against the appellant is that he is the main person who has financed the importers of mulberry raw silk under advance licences to the persons who were holding licences M/s. GVS Exports India (P) Ltd. and the said imports were purchased by him. The allegation is that M/s. GVS Exports India (P) Ltd. have imported the mulberry raw silk for the purpose of export obligations in terms of several licences and portion of it was sold to the appellant. The Managing Director and Director of M/s. GVS Exports India (P) Ltd. have given detailed statements implicating the appellant. The show cause notice brings out in detail, the statements given by Shri G.V. Sathyanarayana, and Shri G.V. Sankaranarayana against the appellant and as to how the appellant had adopted the modus oprendii for buying the mulberry raw silk imported by M/s. GVS Exports India (P) Ltd. and to get those imported consignments diverted to his godown by using the transport of M/s. SRKT. He would retain 70% of the duty-free imported mulberry raw silk and part with 30-40% to Shri G.V. Sathyanarayana, and Shri G.V. Sankaranarayana. These detailed statements implicating the appellants were not resiled. The appellant also did not cross-examine these two persons who were holding the licence for the import of the said goods. The appellant had also given a self implicatory statement involving himself in the offence of diversion of imported mulberry raw silk in the market. However, at a much latter point, he has resiled from the statement but did not choose to cross-examine the main persons i.e. the importers who were holding the licence implicating the appellant in the offences, as charged. The Commissioner has taken a lenient view and has imposed a penalty of only Rs. 50,000/- on the appellant. The same amount of Rs. 50,000/- has imposed on Shri G.V. Sathyanarayana, Managing Director and Shri G.V. Sankaranarayana, Director of M/s. GVS Exports India (P) Ltd. They have failed in their appeal before the Tribunal and the penalty amount has been confirmed.
2. The learned Counsel strenuously argued the case and pointed out that the initial statement of the appellant has been resiled and therefore, the Commissioner’s proceeding on his admission is not justified. However, on a specific query from the Bench as to whether he has cross-examined the Managing Director and Director of M/s. GVS Exports India (P) Ltd., the learned Counsel submitted that the Commissioner was not justified in accepting the statements of co-accused and co-noticees. There is no corroborative statement and on the basis of the statements of co-accused, the appellant cannot be penalized. He submits that the demands are also barred by time.
3. The learned JDR defends the order and submits that the co-noticees have given in clear and in unambiguous terms the modus oprendii adopted by the appellant in procuring the mulberry raw silk and retaining the same for sale in the market. He points out to para 22 of the impugned order, where the Commissioner has referred to six letters of M/s. GVS Exports India (P) Ltd. to the appellants which brings out about the appellant’s dealing with the imported goods and this portion of evidence is very strongly against the appellant. He points out that even for argument sake, if the statement of co-accused were not to be taken into account, even then the documentary evidence in the form of letters has not been challenged and therefore, the charge has been proved. He submits that the Tribunal has not shown any lenience in reducing the penalty against the other co-accused, therefore the penalty should be confirmed.
4. On a careful consideration and perusal of the order and the show cause notice, it is very evident and clear that the co-accused have given a lengthy statements and confessions implicating the appellant. Such statements have not been resiled. The appellant had also corroborated those statements and admitted the offence, however, at a much latter point, he has resiled the statements. But on record, there are several documentary evidence in the form of correspondence between M/s. GVS Exports India (P) Ltd. and the appellant, about the manner in which the goods, were to be dealt. The transporters M/s. SRKT have clearly admitted about transporting all the goods cleared from the customs to the godown of the appellant. Several bank transactions and letters addressed to Chief Manager, Vysya Bank has also been produced by the investigating agency. The Vysya Bank vide their letter dated 30.7.1999 have submitted that M/s. GVS Exports India (P) Ltd. were operating a current account at their bank and they are provided with various other banking facilities. It was also submitted by the bank that the Directors of the said M/s. GVS Exports India (P) Ltd. have committed various frauds, such as manipulating the Bank Guarantees, fabricating the documents and the matter has been taken up by CBI for investigation. The Vysya Bank also submitted that M/s. GVS Exports India (P) Ltd. failed to honour various commitments to the bank. The bank also had been made a co-noticee. They defended the allegation of collusion by submitting that they were not aware of the facts of the goods intended for export were sold with the consent of M/s. GVS Exports India (P) Ltd. This also clearly shows that M/s. GVS Exports India (P) Ltd. were not having clean dealings and the entire operation was done with appellant as the kingpin and the appellant was also involved in the allegations brought out against him. The charge against him has been proved. The Commissioner has already shown lenience in imposing lesser penalty. As the penalty against other two persons has been confirmed by this bench, therefore there is no case made out for showing lenience and for reducing the penalty. There is no merit in this appeal and the same is rejected.
(Pronounced and dictated in open Court)