9911796707
TMI Blog2011 (11) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... cation). 4. The main and the primary contention raised by appellant in the present appeal is that the impugned order passed by the tribunal is perverse and is contrary to the material and evidence on record for the following reasons : (1) The market enquiry report submitted by the appellant was not placed on record. (2) The factory verification report submitted by the appellant has been wrongly disbelieved as false. (3) There is no evidence and material to show that the appellant had carried out examination and cleared 19 shipping bills. (4) Mere telephone conversations between the appellant and Tejwant Singh did not establish conspiracy or collusion. (5) Jagmohan Singh had withdrawn/retracted his statement. (6) The Commissioner had let off and exonerated and did not impose any penalty on other departmental officers Gorvinder Singh Sohal, B K Pabri and V. Valte. For the same reasoning, the appellant should not be penalized. The tribunal ignored the contentions of the appellant on this aspect as well as the reply to the show cause notice submitted by the appellant with reference to the role of B K Pabri, V. Valte and Gorvinder Singh Sohal. 5. Tejwant Singh, as sole proprieto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is the role assigned to the appellant as per the evidence and material on record. Negative equality cannot be pleaded as a defence to any action which is in accord with law and justified. 9. The appellant has not disputed that he had carried out examination of the exported microphones in respect of seven shipping bills. The appellant has also not denied that he had been deputed to carry out market valuation of the microphones after two samples were drawn, when the first shipping bill was submitted for clearance to the customs authorities. The appellant has admitted that he was deputed to undertake factory verification of the unit of Tejwant Singh at Mayapuri and had submitted a positive report in favour of Tejwant Singh. 10. Regarding close association and involvement of the appellant, the Commissioner and the tribunal have heavily relied upon the statements of Sanjay Kumar, customs house agent of Tejwant Singh, who had handled the export consignments covered by the 26 shipping bills. Sanjay Kumar was cross-examined by the appellant but he reiterated his earlier statements and confirmed involvement of the appellant in the fraudulent claim and his association with Tejwant Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e coming out of the above Restaurant. Shri Sanjay Kumar in his above statement had also stated that all the processing formalities in the case of exports of firms of Shri Tejwant Singh were being completed by Rajeev Kumar Sharma himself and that he used to hand over all the shipping bills and file to Rajeev Kumar Sharma to carry out physical examination of the goods and after half an hour Rajeev Kumar Sharma, Inspector used to hand over all the shipping bills back to him containing examination reports and 'let export' order to given by the Supdt. Shri Sanjay Kumar had specifically stated that "after the first consignment was shipped, physical examination was never carried out by any customs officer in any of these consignments and the packages were never opened." Therefore, Shri Sanjay Kumar had clarified that the samples were drawn only once from the first consignment and thereafter no samples were drawn. The duties of a Customs House Agent include getting the shipping bills processed, physical examination of the export consignment and completion of customs formalities and Shri Sanjay Kumar, being the Customs House Agent, was associated in all the above activities and whatever act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries, M/s Bonita Industries, M/s Skyways Industries, M/s Oberoi Industries and M/s chabra Industries. In this very statement, he had also categorically accepted the fact that all these firms were controlled by Sh. Tejwant Singh who was the proprietor of M/s Unicon Industries and the appellant was the neighbor of Sh. Tejwant Singh. He had further admitted that not only he had issued airway bills, he was also looking after the customs examination of the Export Cargo relating to the aforesaid six firms. He even named one Custom Officer, namely, Inspector Sh. Rajeev Kumar Sharma who was witness to all the examination of Cargo. In this statement, he further admitted an irregular/illegal manner in which the cargos were cleared. He specifically admitted that under the instructions of Sh. Tajwant Singh, he was writing the shipping bills to read as "Fixation of DBK in terms of Circular No.68/97-Cus dated 02.12.1997 subject to production of payment of CVD/CEX duty". 6. First contention of the appellant, as noted above was that he had retracted the statement dated 15.10.2001 on 16.10.2001. Nothing was argued by the appellant insofar as his aforesaid statement recorded on 29.8.2001 is concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments to the appellant to show that he had factory at Mayapuri and it was his mistake to obtain Central Excise registration for the factory, which was not in existence. Further, as per call data/details, on 134 occasions, there were conversations between appellant and Tejwant Singh. This was established beyond doubt. Keeping in view the oral testimony of Tejwant Singh, Sanjay Kumar and Jagmohan Singh, the frequency of the calls made are relevant and do establish and corroborate a close relationship between Tejwant Singh and the appellant. The appellant has not explained and shown why and for what reason he was in conversation with Tejwant Singh. In these circumstances, it cannot be said that the order passed by the tribunal upholding the findings of the Commissioner on the third aspect is perverse or without any evidence or material. 15. It may be noted here that the proceedings related to 26 shipping bills. Files relating to shipping bills went missing and were not traceable. The appellant was/is an officer working with the customs department. Three other customs officers were also issued show cause notice under Section 114 of the Act though ultimately against the said officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
