COMMISSIONER OF CUSTOMS, BANGALORE Vs. M.N.S. EXPORTS (P) LTD.

JUDGEMENT

(1.) This appeal is filed by the Commissioner of Customs being aggrieved by the order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore in Appeal Nos. 412-414/2007 dated 3-4-2007 [2007 (219) E.L.T. 649 (Tribunal)] wherein the Tribunal has set aside the order passed by the Commissioner in original order No. 31/2000, dated 13-9-2000. The material facts necessary for disposal of this appeal are as follows :

(2.) On gathering specific information from the officers of Headquarters, Preventive, Bangalore that the said M/s. MNS Exporters Private Limited, had cleared without payment of duty certain goods and had been diverted into the domestic market in violation of the provisions of the Customs Act, 1962, accordingly, the officers visited all the premises of M/s. MNS Exporters Private Limited, on 26-4-1999 and verified the physical stock of the duty free imported materials and also the Bond Register maintained with the Bills of Entry. It was noticed that certain discrepancies with reference to the physical stock at Unit No. 4, No. 46/1, Jaraganahalli, Kanakapura Road, Bangalore-78, as the same did not tally with the imports made, as well as the Bond Register. During the course of verification it was informed by the said firm that the said discrepancies noticed by the officers were on account of removal of certain duty free goods by them outside the 100%, EOU premises and was stored in adjoining premises situated at 68/2, Jaraganahalli, Kanakapura Main Road, Bangalore-78. Immediately the officers visited the said adjoining premises and took stock of the goods stored and noticed that duty free imported fabric of different varieties, polywadding material, fleece, lining material, etc., totaling to Rs. 11,17,674/- and on enquiry it was informed that there was no permission granted by the Customs authorities and they had clandestinely removed from the 100% licenced premises and had stored the same in the adjoining premises. The value of the goods were assessed on 26-4-1999 and handed over to M/s. MNS Exporters Private Limited., for safe custody after obtaining necessary undertaking. Thereafter the investigation began and that the said goods had been received inside the factory and stocked at the instance of Sri H. Bhaskar, the Customs Inspector who was incharge of their Unit EOU-III at Bangalore, during the year 1997-98, since they were regularly importing goods and every month about 30 to 40 bills of entry were filed. Sri H. Bhaskar requested that he wanted a consignment to be cleared in the name of M/s. MNS Exporters Limited and in collusion with employees Raviprakash, D. Prasanna and Sri B. Pramod along with Vikram Jain who was also a licensee for 100% EOU certain goods were brought under the Code Importer in the name of M/s. MNS Exporters Private Limited and the said Bhaskar, along with three employees and Vikram Jain conspired and were made to see that the said goods were released in the name of M/s. MNS Exporters Private Limited and the same was re-exported in the name of M/s. Texworth International Limited., the Company owned by Sri Vikram Jain. On enquiry the Commissioner held and passed the following order :-

(3.) This appeal is admitted for considering the aforesaid substantial question of law. The learned counsel appearing for the appellant submitted that the employees of the respondent-company and its Managing Director Vikram Jain is liable along with the Company employees and they have not filed any appeal and their statement under Section 108 shows that the same was done without the knowledge of the Company. Even though no complaint was filed against the Managing Director of the respondent-company the finding of the Commissioner that there was nexus between the transaction and that company was aware of the same in view of the presumption under Section 147(2) and no rebuttable material is produced and therefore the decision of the Tribunal is contrary to 147(2) and (3) and therefore not sustainable.