TMI Blog2010 (3) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... as not proved to be real. Chain of evidence established nexus of the persons involved and goods exported, to serve their ill will. Reasonable belief of Investigation followed by search brought entire deliberate acts and omissions of appellants to the fold of law. Nexus of each other and their close proximity to the goods exported and fraudulent claim of DEPB made came to light by niceties of investigation. - Crystal clear factual findings of the learned Adjudicating Authority and echoing evidence on record do not demonstrate that Adjudications were made suspiciously or under surmise. All pleadings of the appellants were ill founded. - C/997/2005 and others - C/10-26/2010, - Dated:- 15-3-2010 - Dr. Chittaranjan Satapathy, Member (T) and Shri D.N. Panda, Member (J) Appeal Nos. C/997/2005, C/53, 56, 591/2006, C/416-417/2009, C/94-95, 138/2006, C/59-60/2007, C/230, 427, 433 and 656-658/2006 S/Shri Kamaljit Singh, Piyush Kumar, J.P. Kaushik, R.K. Hasija and J.M. Sharma, Advocates, for the Appellant. S/Shri Vijay Kumar and Sunil Kumar, SDRs, for the Respondent. [Order per : D.N. Panda, Member (J)]. - These three batches of appeals involving 17 appeals arose out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Order of Adjudication No. 2/GS/CC/DRI/NCH/2005 dated : 30-12-05 arising out of Show Causes Notice No. DRI. F No. 23/133/2002-DZU dated 30-12-2003 issued in the case M/s. Chhabra Industries - Prop : Sri Narinder Pal Singh which exported overvalued Microphones and Fuel Pump Diaphragms Appeal No. Appellant Respondent Consequence of Adjudication C/427/06 Jagmohan Singh v. CC. New Delhi Rs. 20.00 lakhs C/433/06 Tejwant Singh v. CC New Delhi Rs. 1.00 crore C/230/06 Rajiv Kumar Sharma v. CC New Delhi Rs. 7,50,000/- C/656/06 CC New Delhi v. V. Valte No penalty imposed C/657/06 CC New Delhi v. G.S. Sohal No penalty imposed C/658/06 CC New Delhi v. B.K. Pabri No Penalty imposed 2. The Appellant Sri Tejwant Singh in Appeal case No. C-997/2005 was proprietor of M/s. Unicorn Industries and exporter of Microphone while he was controller of the benami export business carried out by M/s. Bonita Industries in Appeal Case No. C-138/2006 and in similar nature carried out by M/s. Chhabra Industries in Appeal Case No. 433/2006. Proprietor of M/s. Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fuel Pump Diaphragms Name of the Importer Loss of Duty recoverable from Sri Tejwant Singh due to use of DEPB credits fraudulently obtained Fine Imposed on the Exporter Sri Tejwant Singh Penalty imposed on the Exporter Sri Tejwant Singh M/s. KU Plasticizers, New Delhi Rs. 22,19,828 Rs. 2.00 lakhs Rs. 22,19,828 M/s. Shubham Dyes and Chemicals (now Shubham Chemicals and Solvents Ltd), Delhi Rs. 8,05,352 Rs. 2.00 lakhs Rs. 8,05,352 M/s. Bharat Chemicals, Bhiwadi Rs. 6,07,429 Rs. 60,000 Rs. 6,07,429 M/s. Spun Chemicals, Sawai Modhopur Rs. 7,50,716 Rs. 75,000 Rs. 7,50,716 M/s. PCL Oil Solvents Lt New Delhi Rs. 30,55,182 Rs. 3.00 lakhs Rs. 30,55,182 M/s. Binani Cements Ltd, New Delhi Rs. 69,88192 Rs. 7.00 lakhs Rs. 69,88192 M/s. Base Corporation Ltd, Bangalore Rs. 14,63,176 Rs. 1,45,000 Rs. 14,63,176 M/s. SED Computers and Technologies Ltd, New Delhi Rs. 25,07,858 Rs. 2,50,000 Rs. 25,07,858 M/s. Martin Harris Laboratories Ltd Rs. 15,26,961 Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, such credit was held to be inadmissible and those were disallowed. The goods exported by all the three exporting concerns were revalued and DEPB credits were held to be inadmissible in addition to the consequences followed for the offence committed by the Exporters. Accordingly it was also held the credits so inadmissible were not transferable to the respective transferees for which the transferors are liable to pay the duty lost by Customs against the imports made using the credits. In addition to duty liability imposed as depicted in the table aforesaid on the transferors, they were also subjected to fine and penalty followed by interest on the amount unpaid. The exporter Sri Tejwant Singh proprietor of M/s. Unicorn Industries was imposed fine of Rs. 5.00 lakhs when the goods exported by that concern became liable to confiscation. The exporter Sri Rajeevan Thouvan Kandathil proprietor of M/s. Bonita Industries was imposed fine of Rs. 20.00 lakhs when the goods exported by that concern became liable to confiscation. But there was no fine imposed in the case of exports made by M/s. Chhabra Industries. The persons involved in the racket and associated with the commitment of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and airway bills :- S.No. Shipping Bill No. Item Declared Quantity Declared Value Declared Airway bill No. Consignee Scheme 1. 3232 dated 15-2-2001 Cordless Microphones 400 79700 125- 4606- 8573 M/s. Omid Trade Links USA DEPB- CUM- EPCG 2 1460 to 1469 all dated 20-1-2001 Cheval Microphones 25000 996250 229- 3829- 2844 -do- -do- 3. 443 to 452 all dated 6-1-2001 -do- -do- -do- 2289-3828-8331 -do- -do- 4. 24608 to 24612 dated 22-12-2000 24840 dated 22-12-2000 -do- 15000 597750 125- 4537- 1443 -do- -do- 5. 7844 to 7853 all dated 17-4-2001 Fuel pump diaphragm 48400 1693516 297-244-54861 -do- DEPB- Cum- Drawback 6. 7854 to 7863 dated 17-4-2001 -do- -do- -do- 297- 244-54754 -do- -do- 7. 2767 dated 2-12-2000 Readymade garments 9360 55411.20 214-0961 6482 Trading Dubai DFRC- cum-drawback ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mastermind behind the whole act of defrauding the Government and he organized the entire operation through several fictitious firms, opened by him either under his own proprietorship or under other person's proprietorship over whom he exercised complete control; (2) Cheval Brand microphones exported by M/s. Unicorn Industries under the cover of shipping bill Nos. 1460 to 1469, 443 to 452, 24612 and 24840 were declared at US $ 39.85 per piece whereas the same item was declared before the US Customs at US $ 0.26 per piece in the case of goods covered under shipping bill No. 1460 to 1469 and US $ 1.38 per piece in the case of goods covered under other shipping bills as revealed by the copies of Entry Summaries received from US Customs. Anil Saxena, the only supplier who could be located, had categorically stated that he had supplied microphones to Manpreet Singh (accomplice of Tejwant Singh) @ 16.50 per piece only. (3) Tejwant Singh and his proprietary firm M/s. Unicorn Industries had exported various goods at grossly over-invoiced value. The over invoicing was upto 100 times and done with the sole intent to fraudulently avail undue export incentives available un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chitra Electronics and M/s. Eligin Electronics was found to be incorrect. These two firms denied to have any knowledge of the goods which were exported. M/s. Eligin Electronics denied to have issued any quotation and M/s. Chitra Electronics admitted that they issued such over-valued quotation to some person in greed of obtaining an order or supply of such goods showing them to be of a particular brand which they were not actually of. (9) Fake quotations were obtained by the Customs officials namely Rajiv Kumar Sharma and Gorvinder Singh Sohal, without showing the representative sample of the goods exported and hence it could be said that the quotations which did not have any nexus with the goods actually exported were obtained with the mala fide intention of justifying the export value declared by Tejwant Singh. (10) V. Valte, the then Deputy Commissioner of Customs Air Cargo Export Shed also colluded with the exporter for not examining over-invoiced items exported by M/s. Unicorn Industries and allowed the export of cheap and sub-standard goods. There was no satisfactory explanation about continued provisional assessment though he had finalized the same. He simply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consignee Scheme 1. 6180 to 6189 Fuel Pump Diaphrams 48400 1693616 125- 4607-7990 M/s. Omid Trade Links USA DEPB- CUM Draw back 2. 6190 to 6199 -do- -do- -do- 125-4608-5690 -do- -do- 17. Further scrutiny of the documents revealed that M/s. Bonita Industries, New Delhi had exported above mentioned consignments covered by 20 shipping bills listed at col. No. 2 of the above table for a total declared value of approximately US$ 3387032 (Rs. 15,74,96,980.00) involving DEPB credit of approximately Rs. 2,52,86,038.00. Further, attempts were made for availing drawback by fixation of brand rate on the shipping bills filed under DEPB-cum-Drawback scheme. Out of the above mentioned exports, M/s. Bonita Industries had already been issued 20 DEPB credits against exports of 20 consignments as mentioned above. 17 of these credits had been utilized by various importers for imports and payment of duty through debits in the said DEPB scrips. A separate show cause notice was issued vide DRI F.No. 23/137/2002-DZU dated 31-3-2003 for the export covered by 3 shipping bills wherein DEPB credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsignments of Tejwant Singh. 21. Scrutiny of the related export documents revealed that M/s. Chhabra Industries had exported OTL brand cordless microphones and fuel pump diaphragms to M/s. Omid Trade Links, USA under the following shipping bills and Airway bills :- Sl. No. Shipping Bill No. Item Declared Qty Declared Value Declared Airway Bill No. Consignee Scheme 1. 8495 to 8504 Cordless Micro Phones 20,000 3188000 074- 9879- 1523 M/s Omid Trade Links USA DEPB cum Drawback 2. 8505 to 8514 -do- -do- -do- 074- 9879- 1582 -do- -do- 3. 2291 to 2294 Fuel Pump Diaphragms 42680 1493373.20 055- 4757- 8661 -do- DEPB- cum- EPCG 4. 3226 to 3231 -do- 56320 1970636.80 055-4757- 8683 -do- 22. Overseas enquiries conducted in the matter revealed that in the case of export of cordless microphones (shipping Bill No. 8495 to 8496 all dated 24-4-2001), there was gross over-invoicing. While the value declared before Indian Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 and 29-7-2002 respectively. But Sri Narinder Pal Singh appeared on 22-8-2001 only and his statement was recorded on the said date. Complaint for non-compliance of summons under Section 108 of Customs Act, 1962 had been field against Narinder Pal Singh in the Court of Ld. A.C. M.M., Patiala House Courts, New Delhi and after due proceedings non-bailable warrants had been issued by the learned A.C.M.M, Patiala House Court. Red Alert had also been issued against Narinder Pal Singh by DRI, New Delhi on 8-2-2002 but he was still at large at the time of issue of present show cause notice. Submissions on behalf of appellant Sri Tejwant Singh 26. Learned Counsel appearing on behalf of Sri Tejwant Singh submitted that order of adjudication was passed against him in violation of principles of natural justice since cross-examination of the witnesses whose statements were relied by Revenue for issuing show cause notice was not allowed for which the adjudication is not sustainable. The appellant was not concerned with M/s. Bonita Industries and M/s. Chhabra Industries owned by different proprietors. There was no evidence on record bringing out his connection with these two concerns. In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a restaurant was neither corroborated nor free from contradiction is not reliable. It was not accessible to a third person to read the contents of letter head said to have been issued by Sri Tejwant Singh to Sri Rajiv Kumar Sharma which were used by Department against the Appellant without examining veracity of the statement recorded. The statement of Sri Jagmohan Singh was also not corroborated by any evidence when there was retraction of the statement on 16-10-2001 which was recorded on 15-10-2001 from him under force and coercion as well as physical torture. Statement of the co-noticee Sri Sanjay Kumar and Sri Jagmohan Singh being full of contradiction and retracted are not usable against the Appellant. Mere use of mobile phone by the appellant for his contacts does not become evidence against the appellant when call details were not before learned Adjudicating Authority. Shipping bill details not being given to the appellant for rebuttal, the adjudication made has violated principles of natural justice. The Appellant had acted according to the direction of authority and the Dy. Commissioner had approved the market enquiry and signed the shipping bills. The Bills of Entries c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Ram v. State of U.P. - AIR 1975 SC 175, Faguna Kant Nath v. The State of Assam - AIR 1959 SC 673, and decision of Hon'ble Bombay High Court in the case of M. Shashikant and Company v. UOI - 1987 (30) E.L.T. 868 (Bom.) to plead innocence of the Respondent. The Respondent having acted bona fide under law and acted on good faith is entitled to the immunity from penalty. He had not consciously caused evasion of Revenue and was not instrumental thereto. Adjudication was rightly done to grant immunity from penalty to the Respondent Officer. Submissions on behalf of respondent Sri B.K. Pabri 30. It was submitted on behalf of the Respondent Inspector Sri B.K. Pabri that he had acted under instruction of the superior authority and whenever any other Officers were not available on duty, he was entrusted duty of those Officers which is common in day to day discharge of duty at the Air Port and he has acted accordingly without acting deliberately on his own accord. There was no collusion of the Respondent on record. None of the statements recorded from different persons implicated him. There was nothing in show cause notice that secret agreement was entered into by this respondent to ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a ascertained from telephone diary proved that the goods were inferior quality and were deceitfully exported overvaluing the same to claim DEPB credit fraudulently. Frequent telephone calls of Sri Tejwant Singh with Sri Anil Saxena did not rule out his dealings of procurement of cheapest microphones exported. His premeditated minds was well proved when he had not manufacturing facility to manufacture the exported goods but was procured from incredible sources proving the price of goods much lower than the value declared in the export documents. Without manufacturing facility, Sri Tejwant Singh produced fake certificate from Chartered Engineer. 35. Bogus address given in various export documents were proved by physical enquiry. His creation of dummy units and absolute control over the same were proved from the oral evidence given by the proprietors created by him for name sake. The nexus of importer abroad proved guilty intention of the exporters. Sri Rajeevan Thouvan Kandathil was name lender proprietor of M/s. Bonita Industreis and Sri Narinder Pal Singh was also so in respect of M/s. Chhabra Industries tendered evidence against Sri Tejwant Singh. Evidence of Sanjay Kumar, CHA w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and Intermediate Education - AIR 2003 SC 4268 that no court in this land will allow a person o keep an advantage which he obtained by fraud. Tribunal in the case of CC v. D.M. Enterprises - 2007 (213) E.L.T. 414 held that fraudulently obtained DEPB Credits has no title on the face of law and it was held in DIC India Ltd. v. CC - 2008 (226) E.L.T. 545 that DEPB credit obtained on the base of forged and fake document does not confer any title on the claimant and others who use such ab initio void credits. Tribunal in the case of ICI India Ltd v. CC - 2009 (240) E.L.T. 290 held that transaction based on fraud continues to be tainted by the vice and the person committing the fraud is precluded from deriving any benefit. Similar view was also expressed by Tribunal in the case of Kamala Metachem v. CC - 2007-TIOL-2247-CESTAT-KOL and in the case of M/s. Synotex Industries v. CC - 2008-TIOL-777-CESTAT-KOL. 40. It was also submitted by Revenue that when the materials gathered in the course of investigation and followed up enquiry were relevant and admissible in admissible in evidence, those were bound to be used against the appellants since evasion and fraudulent exports are organised w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance on the judgment of Apex Court in the case of Surjeet Singh Chhabra v. Union of India - 1997 (89) E.L.T. 646 (S.C.) and on the judgment of Hon'ble High Court of Madras in the case of Roshan Beevi Others v. Joint Secy. to Govt. of Tamil Nadu - 1984 (15) E.L.T. 289 (Mad.) was to submit that the Customs Authorities not being Police Officers, oral evidence recorded u/s 108 of the Customs Act, 1962 even if confessional are usable against the person and binding on him who gave the statement and cross examination in such circumstance is unwarranted even if such statement is retracted subsequently since Customs Authorities are not police officers. Revenue further placed reliance on the Apex Court decision in the case of K.T.M.S. Mohammed and Others v. UOI - 1992 SCC (3) 178 to submit that mere retraction of an evidence recorded u/s 108 of Customs of Act, 1962 is not sufficient to take opportunity at a later date to plead that as value less when the maker of statement fails to establish that improper means was adopted to record such evidence. Revenue accordingly submitted that all the appeals relating Exporter Sri Tejwant Singh, the Inspector Sri Rajeev Kumar Sharma and Sri Jagmohan S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unicorn Industries and he required storing place of his goods for that concern. Shri Tejwant Singh told him that he was keeping one Injection Moulding Machine and he made agreements for occupying the Ground Floor, First Floor and Second Floor and such premises were taken w.e.f. 1-7-89/1-8-1999 for storing raw material, finished goods and manufacturing of plastic moulding goods and scrap. He also stated that there was a raid by Customs Authorities in September, 1999 to that premises and after that date, no machine had worked in the premises and no goods had come from outside to that premises. The finished goods lying in the premises were cleared by Shri Tejwant Singh. In view of the raid, he (Shri Harbans Singh) asked Shri Tejwant Singh to vacate the premises and that was done in October, 2000. According to the statement of Shri Harbans Singh, he had never noticed manufacturing of Microphones, Automatic parts or readymade garments was done by M/s. Unicorn and no machinery was installed for manufacture of these items. Aforesaid evidence bringing out no manufacture carried out by Sri Tejwant Singh was not repelled leading any cogent evidence. 48. So far as the premises situated in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Shri Tejwant Singh that Shri Rajeev Kumar Sharma (who is also an appellant in all the three batches of appel), Inspector of Customs Department has understanding with him and he has to take the consignments to the examination area and hand over shipping documents to Shri Rajeev Kumar Sharma, Inspector for doing the needful. Sri Sanjay Kumar further stated that he was given to understand that altnough that Inspector was on duty in different areas in Air Cargo Complex, he would always sign the examination report for these 4 (four) firms. In his statement he further stated that no physical examination of the goods belonging to these firms was conducted by Shri Rajeev Kumar Sharma, Inspector. That Inspector always used to sign the export report for the goods. He also stated that even without any written order of the Deputy Commissioner (Exports) Sri V. Valte for examination of Shipping Bills, Shri Rajeev Kumar Sharma was completing the formalities stating that he was verbally directed by Deputy Commissioner to examine the cargo. No samples were drawn from the export consignment. Shri Sanjay Kumar further stated that Shri Tejwant Singh was giving the samples directly to Shri Rajeev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in existence and there was some consideration involved between Shri Tejwant Singh and Shri Rajeev Kumar Sharma, Inspector to make export of goods of Shri Tejwant Singh. There were regular contacts between Shri Tejwant Singh and Rajiv Kumar Sharma, Inspector. 52. The premises situated in J-7/86 at Rajouri Garden, New Delhi was owned by Shri Jagmohan Singh who is also an Appellant in all the three batches of Appeals. He was proprietor of M/s. Lotus Cargo Service. His Statement was recorded on 29-8-2001. That disclosed that he issued Airway bills for the firms viz., M/s. Zap Fashions, (2) M/s. Unicon Industries (3) M/s. Bonita Industries (4) M/s. Skyways Industries (5) M/s. Oberoi Industries and (6) M/s. Chabra Industries. He further stated that all these six firms were controlled by Shri Tejwant Singh who was Proprietor of M/s Unicorn Industries. He was neighbor of Shri Tejwant Singh. He also stated that apart from Airway bills issued, he also looked after Customs examination of the Export cargo relating to above 6 (six) firms. He further stated that one Customs Inspector Shri Rajeev Kumar Sharma was witness to all examination of cargo and one or two packages were kept open and Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Both were exported under DEPB Scheme. Readymade garments were exported partly under DEPB Scheme and partly under Drawback Scheme. Some of the consignments of Microphones were exported under the "EPCG cum DEPB Scheme". 56. Shri Tejwant Singh in his oral evidence on 22-8-2001 also stated that M/s. Chhabra Industries was a Proprietorship concern and Shri Narinder Pal Singh was its Proprietor (No appeal of such concern or proprietor came up for hearing in the course of hearing of aforesaid batch of appeals). He also named M/s. Bonita Industries and stated that Proprietor thereof was Shri Rajeevan resident of Kerala. Also he named M/s. Oberoi Industries and Proprietor thereof was Shri Manpreet Singh Oberoi (Sonu). He also named M/s. Oxford Fashions whose proprietor was Manpreet Singh. He stated that M/s. Skyways Industries was a proprietorship concerned and Shri Sanjiv Sharma was Proprietor. He also confirmed that M/s. Unicorn Industries, M/s. Skyways Industries, M/s. Chhabra Industries, M/s. Bonita Industries, M/s. Oberoi Industries and M/s. Oxford Fashions were all looked after by him (Shri Tejwant Singh). He further stated that M/s. Chhabra Industries had exported RMG Microphones ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as well as of Shri Stish Kumar Gupta. He also stated that he had not seen factory of such supplier but goods received from such supplier were exported. All these story proved that Sri Tejwant Singh obstructed process of Investigation without co-operating and providing identity of either Mr. Satish Kumar Gupta or of M/s. Gupta traders. He wilfully concealed source of procurement of Fuel Pump Diaphragm to cause overvaluation of such goods for undue gain. 59. Narinder Pal Singh Proprietor of M/s. Chhabra Industries was examined and in his oral evidence recorded on 22-8-2001 u/s 108 of the Customs Act, 1962 stated that his father Shri Harvinder Singh had a car financing business in the name of M/s. Fin Care at G-22/1A, Rajouri Garden New Delhi; that he started going to the office of his childhood friend Tejwant Singh @ Ginny in the year 1997. He stated his acquaintance with Sri Tejwant Singh and investment Rs. 75.00 lakhs with him for export business on his persuasion. He also stated that Sri Tejwant Singh was engaged in exports to USA where his uncles stayed. He was assured by Sri Tejwant Singh that he (Sri Tejwant Singh) shall arrange every thing and look after export work but Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export. There were many warehouses under the export cargo jurisdiction. He confirmed that signature on shipping bills of M/s. Unicorn Industries, M/s. Chhabra Industries, M/s. Bonita Industries, M/s. Oberoi Industries and M/s. Skyways Industries were forged. But he could not state whether he had processed the shipping bills of M/s. Bonita Industries. He also confirmed that he had not seen any item like microphone or fuel pump diaphragms exported by M/s. Unicorn Industries, M/s. Chhabra Industries, M/s. Bonita Industries, M/s. Oberoi Industries and M/s. Skyways Industries. He also confirmed that Shri B.K. Pabri, Superintendent was in-charge of CRU and Shri Rajeev Kumar Sharma, Inspector was in-charge of market enquiry during the above period. He further stated that Shri Rajeev Kumar Sharma, Inspector had conducted market enquiry in respect of the goods exported by above firms. But in only one case another Inspector Shri Gurvinder Singh Sohal was assigned market enquiry for a second opinion. He further stated that although efforts were made to trace the missing files relating to processing of market enquiry that was invain. He further stated that neither Shri B.K. Pabri nor Shri Raje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se files never came back to him, although all these files should have come to him after market enquiry is completed and should have been put up for final assessment. He stated in his oral evidence that the Inspector Shri Rajeev Kumar Sharma had requested him for early processing of shipping bills of one of the aforesaid concerns. 67. The investigating officer examined Shri B.K. Pabri, Superintendent, and the Respondent in these three batches of appeal, who had issued "let export" order for the shipments of cargo to M/s. Unicorn Industries. He stated that when he was promoted to the post of Supdt., in September, 2000 he was posted in Export (Shed) of Air Cargo, New Delhi till June, 2001. He was posted in warehouse and CRU Section of ACU Exports and his duties included processing of shipping bills. His duty was to supervise activities of Inspectors in different warehouses daily and those officers were required to examine consignments for export. Shipping Bills of M/s. Unicorn Industries, M/s. Chhabra Industries, M/s. Bonita Industries, M/s. Oberoi Industries and M/s. Skyways Industries as well as M/s. Oxford Fashions were put up before him for market enquiry. He used to examine one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnatures. He corroborated that all the above five concerns were (represented by one Shri Jagmohan Singh) for clearance and he used to do liaison work with customs for these firms for conducting market enquiry relating to microphones. He visited some dealers of microphones at Lajpatrai Market along with a sample and contacted four to five dealers but he could not name such dealers. 69. When statement recorded from Shri B.K. Pebri, Superintendent and Shri Rajeev Kumar Sharma, Inspector were exposed to Shri V. Valte Deputy Commissioner, he denied the allegations made by them in their statements. He denied that they had acted on his instructions and stated that they designed their statements to malign him (Shri V. Valte). He stated that when case of M/s. Zap Fashions was booked by him, he came to know that his signatures were forged and this case was handed over to preventive unit for a full fledged investigation. 70. Shri Gurvinder Singh Sohal who was also an Inspector of Customs posted at Air Cargo Exports unit and a respondent in two batches of appeals, had conducted one market enquiry relating to cordless microphones of M/s. Unicorn Industries. He was examined on 12-9-2001. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectronics he stated that on 31-3-2003 he had conducted market enquiry and obtained quotations in writing from these two dealers and he does not understand why they denied about the market enquiry conducted from them. When cross examination of above two concerns was asked for by Sri Sohal Inspector, the quotations given by them could not be produced for their perusal because those were not available on record. As result, learned Adjudicating Authority exonerated Sri Sohal. 73. When the statement recorded from Shri Rajeev Kumar Sharma, Inspector and B.K. Pabri, Superintendent proved their involvement in the exporter racket, they were arrested for their involvement in DEPB fraud of M/s. Unicorn Industries as well as other sister concerns of that firm. 74. Record reveals that overwhelming evidence was gathered by eRevenue to prove that the goods subjected to export were of inferior quality and overvalued to make undue gain of DEPB Credits. Revenue, had made successful inquiry and investigation to find every link of the fraudulent design made by the perpetrators of fraudulent claim of DEPB adopting various dubious practices proving their conduct and modus operandi. Entire argument o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to have suffered from any of the legal infirmities and cannot be faulted. 77. Although it was pleaded in the course of hearing that there was denial of natural justice for no permission to conduct cross-examination, that did not weigh consideration heavily when documentary and oral evidence established beneficial interest of all involved in the unlawful claim of DEPB made though overvalued export perpetuating the offence playing role by all the exporters one way or other without ruling out their intimate connection to the offence committed. Their motive was found to be oblique. Therefore plea of the appellants for cross-examination was rightly discarded in absence of any cogent evidence being brought to show that they were deprived of process of justice and enquiry was perverse or prejudiced interest of justice. Investigation successfully proved the case bringing out entire chain of evidence discovering misdeclaration of the value goods by cogent evidence. 78. Overseas enquiry was not challenged to be motivated. Result of enquiry remained uncontroverted except bald plea of denial of cross examination when the undervaluation of goods proved motive of appellants as well as thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances proving nexus of the appellants to the entire deal does not make investigation story unbelievable. Looking to the entire genesis of the case it can irresistibly be concluded that investigation has very successfully proved its case and what was apparent was proved not to be real. Modus operandi of the all the appellants proved that they had defrauded Revenue and misdeclaration and unlawful claim of DEPB credits was outcome of their accts and omissions for which they were properly dealt in adjudications. Fruits of forbidden tree being always forbidden, the exporters had no right to transfer DEPB credits obtained fraudulently for which they were rightly made liable to consequences of adjudication. 82. Coming to the role of Respondent Officers it may be noticed that the Respondent Sri V. Valte had no deliberate intention to defraud Revenue nor he had connived with the exporters to cause loss of Revenue. His anxiety to trace relevant file is vividly clear and his reference to the investigation of certain matter when that came to his notice proves his conduct unquestionable. Accordingly he was rightly exonerated from charges. Similarly except negligence, mala fide of the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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