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2014 (6) TMI 510 - CESTAT NEW DELHIWaiver of pre-deposit - Fraud - Mis declaration of goods - Attempt of clandestine removal of goods - Held that:- Prima facie, record reveals that import of 5010 number of bottles of whisky in 501 cartons covered by B/E 795029 dated 26.05.2009 valued at Rs. 1,00,87,566/- (as against declared value of Rs. 83,94,779/-) were concealed under 847 cartons of Carbonated/Aerated water, Beverages and Ketchup etc. Valued at Rs. 5,51,518/- came in container No. DCCU 6984503. Such fact remained undisputed when physical verification of the container was made by Customs which resulted in above inventory as per Panchnama. Above bill of Entry was filed by M/s Swaraj International, Karol Bagh owned and run by one Harsh Anil Vasant. This was confirmed by the appellant Mool Chand Sharma Director of CHA M/s R.U. Import & Export Pvt. Ltd. The CHA was attempting to clear above consignment. In his statements recorded under section 108 of Customs Act, 1962 on 02.06.2009and 03.06.2009 Shri Mool Chand Sharma brought out his role affirming that Harsh Anil Vasant was also owner of both Swaraj International and M/s Mohit International. Statement of Mool Chand Sharma director of M/s Import Export Pvt. Ltd. prima facie, brought out his close connection with Harsh Anil Vasant designing the above modus operandi to defraud Revenue. Para 49.1 of adjudication order brought out how he extended his assistance to Harsh Anil Vasant for clearance of mis-declared goods filing a wrong bill of entry on 26.05.2009 deliberately and twice in past. Mool Chand Sharma laid hands on the stamp of Commissioner of Customs, ICD, TKD adopting unscrupulous means to make use thereof and forge document to make an attempt for clearance of the offending goods. His conduct dragged him to arrest along with Harsh Anil Vasant. Deliberate mis-declaration surfaced in respect of all the 3 B/Es and Shri Mool Chand Sharma failed to defend before learned Adjudicating Authority. Fraud is an act of deliberate deception of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intending to get an advantage as has been held in the case of S.P. Chengalvaraya Naidu V. Jagannath [1993 (10) TMI 315 - SUPREME COURT]. In Ashok Leyland Ltd. V. State of Tamil Nadu [2004 (1) TMI 365 - SUPREME COURT OF INDIA] it has also been held that fraud is proved when it is shown that a false representation has been made knowingly. Therefore there is no scope to grant total waiver of pre-deposit to the appellants for hearing their appeals. - stay granted partly.
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