TMI Blog2014 (10) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... aj Prakash allotted both the impugned shipping bills in his name for examination. He manipulated the data in the computer through one Shri Narender Singh. That manipulation was done in the computer terminal of Shri D.V. Sidhmukh since that was open. Mischievous act of Suraj Prakash was corroborated by statement of Narender Singh and Sanjay Kumar Pandey as well as Deeraj Kumar, ‘H’ card holder of M/s.Kunal Travels, the CHA. As per the work allocation order issued by Assistant Commissioner, Shri Suraj Prakash was posted at the Customs Station on 18.06.2003 under the supervision of Shri Ravinder Mohan. However, the shipping bills of M/s. H.M. Impex were taken by him to Shri D.V. Sidhmukh, Superintendent without the same being presented to Shri Ravinder Mohan. He admitted such crucial fact. His connection with the smuggling racket was also corroborated from the call details register and his involvement in committing fraud against Revenue remained uncontroverted except inviting misplaced sympathy in the course of argument submitting that the appellant was a Customs Officer. So far as the case of Shri Poonam Chand Gupta is concerned, his involvement is vividly clear from para 108 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice thereof and he was penalised. That has come to an end by the right dose of penalty, not calling for interference. Shri Vijay Kumar Gupta and Shri Poonam Chand Gupta were so intimately connected with each other, they could not dissociate themselves from the racket attempting to export the offending goods. While M/s. H.M. Impex was proved to be a fake concern and this appellant played a pivotal role to defraud Customs Authority impressing them that M/s.H.M. Impex was an existed concern in the eyes of law, he was perpetrator of fraud. M/s.H.M. Impex having been proved to be fake concern and attempted to export inferior goods overvaluing the same and draw back having been claimed fraudulently as well as depositing the same in bank account were drawn for their enjoyment, commitment of fraud against Revenue was established. All such factors call for dismissal of all the appeals - Decided against the appellants. - Customs Appeal Nos.C/481, 492, 491, 493, 551, 617, 483/2007-CU[DB] - FINAL ORDER NOs.53952-53958 - Dated:- 15-10-2014 - Mr. D. N. Panda and Mr. Manmohan Singh, JJ. For the Appellant : Shri. Dalip Singh (Proxy Counsel), Ms.Surabhi Sinha, Advocate, Shri S.K. Pahwa, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was mis-declaration of description of the goods as well as overvaluation of export, both in respect of live and past consignments alleged by Revenue, this appellant was not a contributory to the commissions or omissions alleged. He submitted that entire finding of the Commissioner recorded in para 115 of his order has no basis since this appellant had not manipulated any document in the computer nor also had any power to access into the computer. He was on duty merely to inspect the goods as that was directed to him by his higher authorities. Therefore, there should not be any penalty on him. 5.1 Ms. Surabhi Sinha, ld. Advocate arguing for Poonam Chand Gupta in Appeal No. C/551/2007submitted that this appellant was an Advocate. Except the legal assistance provided by him to his client, he was not involved in any of the mis-declaration alleged. He had no role to play in the export made. He was also unaware whether there was any higher drawback claim made by any exporter overvaluing the goods. He was not at all concerned with the same since he was not an exporter. According to her, it is settled principle of Rule 16 of Draw Back Rule that recovery of the drawback is to be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty on the appellant. 5.7 Ld. Advocate relied on the decision of Apex Court in Vinod Solanki vs. UOI reported in 2009 (233) ELT 157 (SC) to submit that the appellant has never confessed and in case of confession the burden of proof lies on the Revenue to prove that such a confession was fairly made without any undue influence, coercion or pressure of any kind. In absence of any evidence to show that there was a confession, Revenue fails to establish charge against this appellant. There was no voluntary statement given by him. The statement recorded from the appellant was under pressure. The appellant being innocent, he has right to claim defence against the allegation and he cannot be alleged to be an evader or committer of any omission or commission under law without his active role and deliberate intension to do so. He was brought to record without his involvement in the claim of higher draw back by others. 6.1 On the other hand, Revenues submission is that the officer Suraj Prakash tampered the entries in the computer and mischievously handled the same to mark the shipping bills in his name to give a clean chit to the exporter M/s. H.M. Impex. There were strong evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by various mischievous members of the racket causing prejudice to Revenue. This comes out from para 21 of the adjudication order. Poonam Chand Gupta was a party even to the bank withdrawals which comes out from the said para. 6.5. When Revenue was deceived by the above appellants and also the other appellants in this bunch of appeals who were actively involved in commitment of fraud against Revenue all the appeals are liable to dismissed and penalties confirmed without interference to the adjudication order. 7.1 Heard both sides and perused the record. 7.2 None present for the appellants Surinder Malik, Vijay Kumar Gupta, Subodh Kumar Pandey, Lalit Kumar Katoch and Narinder Singh who faced penalties of different amounts stated in the table at the outset and no defence was led on their behalf. However, in their absence, the records were thoroughly examined and assistance of Revenue was taken. 7.3 Ld. Adjudicating authority has recorded that none of the parties in the show cause notice challenged mis-declaration of the description, quantity, weight and value of the goods attempted to be exported by H.M. Impex. That concern with the IEC Code No.0501039511 with the address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be exported. So also the gear cutting tools declared as made of cobalt was found to be non-metallic components of four different sizes. These components were not used in machinery as rings. 7.7 CRCL vide report C. No. 35-CUS/2002/CL-139(SH B)and CL-237 to 240(SIIB) issued on 01.02.2004 and subsequent clarification vide their letter dated 05.02.2004, reported that out of the five samples tested by them, three samples were alloy steel and the remaining samples were steel . Each was other than 'High Speed Steel'. Also, none of 'the samples revealed presence of Cobalt. Hence, the goods declared as 'Gear Cutting Tools made of Cobalt Bearing High Speed Steel' were not covered under S. No. 82. 1 of the table of duty drawback rates, 2003-2004 and were not eligible for 'the, duty drawback claimed in the Shipping Bill No. 1288039 dated 17.6.2003. 7.8 Sealed samples were drawn from the consignment of goods declared to be 'Rings (100mm, 80mm, 60mm, 40mm) - Textile Machinery Parts' and were forwarded to M/s Northern India Textile Research Association (NITRA), an institution connected to the Ministry of Textiles, Government of India for test. They had g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s H.M. Impex, originals of two CRN slips issued by the Container Corporation of India, rough calculation slip showing the costing of 28500 pieces of RMG were recovered from Sh. Vijay Gupta. iv) Sh. Subodh Kumar Pandey in his voluntary statement recorded under Section 108 of the Customs Act, 1962, stated that he had come to the export shed of ICD, TKD with Shri Vijay Gupta, Sh. Poonam Chand Gupta, Sh. Surinder Malik and Sh. Lalit Katoch for the clearance of export shipments of M/s H.M Impex; that the value of the goods were shown in the export documents as US $ 12.15 per piece whereas their actual value was ₹ 20 to ₹ 30 per kg., those being stinking rags; that the said consignments was shown to be valued at ₹ 1,62,34,087 and drawback ₹ 17,04,579/- was shown; that in the second consignment, value of rings had been shown as US $ 14.75 (Rs.688.80) per 100 pieces whereas their actual value was not even 10 paisa per piece; that the second item in that shipping bill was `gear cutting tools - cobalt bearing high speed steel'; that the value of that consignment was declared as ₹ 62,92,416.38 and drawback claimed was ₹ 16,95,274; that the actual val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a dealer of junk garments; that he sold surplus rejected goods to Sh. Vijay Gupta of the value of ₹ 20 to ₹ 30 per kg; that he was aware that Shri Vijay Gupta exported such goods at very high prices and earned a lot; that Sh. Vijay Gupta and Sh. Poonam Chand Gupta used to purchase goods from him for export. ix) Sh. Vipul Kumar Mishra in his statement recorded under Section 108 stated that Sh. Surinder Malik requested him to help in hiring transport. x) Faxed copies of documents were recovered from the premises of CHA. These were faxed from phone number 91-11-5155615 which belonged to Sh. Poonam Chand Gupta and installed at his office premises. xi) Blank letter head of M/s H.M. Impex were recovered from the premises of Sh. Subodh Kumar Pandey. xii) No foreighn exchange for any of the 12 shipping bills of M/s H.M. Impex for export from ICD, Patparganj, Delhi or for any other exports was received in their bank account. xiii) Sh. Subodh Kumar Pandey had accompanied Sh. Rajiv Kumar, so called proprietor of M/s H.M. Impex, at the time of opening of bank account. xiv) Sh. V.P. Chawla who had encashed the cheques from the account of M/s H.M. Impex in his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H.M. Impex were taken by him to Shri D.V. Sidhmukh, Superintendent without the same being presented to Shri Ravinder Mohan. He admitted such crucial fact. His connection with the smuggling racket was also corroborated from the call details register and his involvement in committing fraud against Revenue remained uncontroverted except inviting misplaced sympathy in the course of argument submitting that the appellant was a Customs Officer. 10.1 So far as the case of Shri Poonam Chand Gupta is concerned, his involvement is vividly clear from para 108 of the adjudication order. Although he claimed to be an Advocate, he was involved in purchasing all spurious goods from one M/s. Jyoti Enterprises and that was corroborated by the proprietor thereof. He (Proprietor) admitted to be a dealer of junk garments and Shri Vijay Kumar Gupta as well as Poonam Chand used to purchase such goods from him for export. Recovery of the blank letter heads from premises of Shri Poonam Chand could not be ruled out. He was also brought to record from the evidence of Shri Sanjay Kumar Pandey when he was accompanying him for the clearance of the fraudulent exports attempted to be done by both the shipping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, in absence of cogent evidence to the contrary, plea for cross-examination is liable to be discarded. But that is not the case in the present appeal. Appellant did not discard any of the evidence gathered by the investigation nor veracity thereof questioned. Therefore, there cannot be further plea of no grant of cross-examination. 10.5 The appellant was examined under section 108 of Customs Act, 1962 by customs authority and the evidence gathered during that process is valuable evidence which is admissible in law not being recorded by a police officer. Such evidence being given in the course of judicial proceedings, that is creditworthy and the appellant has no right to go back from that. That may be confessional statement. The statement given by the appellant in the present case corroborated by cogent evidence gathered by investigation inculpated him to the commitment of offence by him under law for which he was rightly penalised. When the appellant faced penalty only, there is no further necessity of dealing with the plea of joint liability raised by the ld. counsel. 10.6 Ld. authority below threadbare examined all the pleas of the appellant and did not bypass his duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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