9911796707
TMI Blog2015 (11) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... uge amount. He filed Shipping Bills with bogus IEC Code, bogus RBI Code, made forged Bill of Lading and bank attested invoices, forged signatures of officers of preventive department on export promotion (EP) copies of shipping bills and also examination reports were obtained on the shipping bills without carting the goods and without exporting any goods. In this manner he created companies and claimed drawback in the name of M/s. GSK Exports, M/s. ATA Industrial enterprises and M/s. All Export. M/s. All Exports, and M/s. GSK Exports claimed drawback at Nhava Sheva port and M/s. ATA Industrial Enterprises claimed at Nhava Sheva and Mumbai Port. The address of the companies in the drawback register were found to be bogus. The description of the goods was shown in the Shipping Bills as Handicrafts of Brass Artware, Motor vehicle parts Kingpin nickel metal, spring bush copper. The Shipping Bills showed Custom House Agent as M/s. Crown Shipping or M/s. PAL India Shipping Agency. In some cases the shipping bills were registered with export department and proper order for examination was given by the appraising officer. In some cases drawback was sanctioned and in some the drawback amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing bills without carting the goods for shipment. Shri. Chauhan was to charge 25% of the drawback amount for giving the examination report and out of charge. For this purpose he sent Shri. Balbir Singh, an employee of Shri. Ramesh Singh to the Appraiser Shri. Chauhan. It was Shri. Chauhan who guided them to prepare documents, float new company(M/s. All Export), that is how the modus operandi was carried out, 25% of the drawback amount was taken by Shri. Chauhan, the drawback cheques were obtained after paying the officers and staff in the drawback department. He prepared all the documents and got the shipping bills prepared by Shri. Ramesh Singh. Some of the Bills of Lading were prepared by him and some by Shri. Ramesh Singh. He admitted that the bank attested invoices were signed by him as Manager of the Bank. 3.2 As regards the triplicate shipping bills available, Shri. Qureshi of Crown Shipping, CHA and Shri. Manohar Bhadeka of Pal India Shipping stated that shipping bills were not signed by them nor were they entered in their export register. However Shri. Bhadeka also stated that some business was brought to them by Shri. Ramesh Singh from whom he would receive Rs. 1500 per m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back in respect of shipping bills for which drawback was not sanctioned. The goods were held to be liable to confiscation. However in the absence of goods no order was passed for confiscation. Imposed penalty on Shri. Gurmit Singh Kohli and Shri. Ramesh Singh. However he dropped penalties on Shri. Balbir Singh, Shri. Qureshi, Shri. Manohar Bhadeka, Shri. Paresh, Shri. BS Chauhan, Shri. Desai, Shri. Srivastava and Shri. Pamnani. 4. Revenue found fault with the adjudication order in not relying on the statement of Shri. Gurmit Singh Kohli admitting the whole modus operandi and that he has distributed various amounts to the officers. Further that adjudicating authority ignored the statement of Shri. Manohar Bhadeka who had admitted to being paid by Shri. Ramesh Singh for the business brought to him by the latter. Thus Revenue in its appeal seeks to impose penalties against Shri. Balbir Singh, Shri. Qureshi, Shri. Manohar Bhadeka, Shri. Chauhan, Shri. Desai, Shri. Srivastava and Shri. Pamnani. 5. Heard both sides. 6. Learned A.R. appearing on behalf of the department reiterates the grounds of appeal. On the preliminary objection of respondent that the appeal memo is not signed by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dertaken by CBI. Therefore the allegation on the part of appellant does not survive. He reiterated the findings of the adjudicating authority. He relied upon Commissioner of Customs, New Delhi Versus M.I. Khan[ 2000(120) ELT 542(T)] [2007(217)ELT 592(T)] G.H. Industries Versus Collector of Central Excise, Ahmedabad [1997(94) ELT 483(T)] 8. We have carefully considered the facts and submissions 9. Learned counsel for the respondent Shri Chauhan made a preliminary objection that the authorisation under Section 129(D) is filed by the Assistant Commissioner and is therefore not maintainable. The authorisation should have been filed by the Commissioner. He relied on the case of M.B. Electronics (supra). We find that, as pointed out by the learned AR, in this very case in Civil Appeal 60 of 2007 in Order dated 03-12-2012 the Honourable High Court of Mumbai held that the appeal memo not being signed by an authorised person only amounts to an irregularity and not illegality. Therefore we proceed to examine the case on merits. 10. A contention raised by the counsel for the respondents is that the whole case is based on the statement of Shri GS Kohli only and is not tenable, rely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng agency had specimens of handwriting when the statements of Shri Chauhan were recorded in March April 96 there is no evidence that the handwriting experts opinion was taken at that stage. If it was taken the same was not made available to Shri Chauhan who requested for it vide his letter dated 05.03.07. The case of the department is based on the statement of Shri GS Kohli. He deposed that Shri R S Singh (the employer of Shri Balbir Singh) had told to Shri GS Kohli that according to Balbir Singh, Appraise Shri B S Chauhan would give examination reports as desired by them . At the same time the fact is that Shri GS Kohli and Shri R S Singh themselves never discussed any issue with Shri Chauhan. Therefore as held by the adjudicating authority, the next logical step for investigation shoul have been to examine Shri R.S. Singh and Shri Balbir Singh. But this was not done. This step for investigation was most necessary when in the present case it is claimed that Shri. GS Kohli was not informed by Balbir Singh about discussion with Shri. B.S. Chauhan, but was informed by R S Singh who is the employer of Balbir Singh. Hence the Department is relying on evidence which cannot even b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f drawback, the examination report was written on the duplicate copy of the shipping bill with carbon copy of the report on the drawback (triplicate) copy and EP copy of the shipping bills. It is a fact that the reports, initials and signatures on the shipping bills found on drawback copy were verified by the GEQD Hyderabad as discussed in detail in the chargesheet dated 24.12. 2004 filed by the CBI. Since the documents which were verified by the GEQD were supposed to be on the triplicate copy of the shipping bill, it would not have been a different result if handwriting written on the original copy was examined by the handwriting expert. In sum, the Commissioner held that the charge against Shri BS Chauhan does not hold good. Revenue's grounds for appeal are, inter-alia, that Shri Chauhan did not retract his statement for 11 years. Further that the standard of proof in a civil case is preponderance of probability compared to a criminal proceeding where charges have to be proved beyond reasonable doubt. Revenues contention is that just because the adjudicating authority appears to have wrongly construed that the CBI is not pressing proceedings against the officers in the court, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tally Sheet Clerk was required to enter the details of the Drawback claims as per the claim papers forwarded to him by the L.D. Clerk of the Drawback section. As per the Standing instructions there was no obligation and prescribed procedure for the Tally Sheet Clerk to verify Drawblack claims with the duplicate copy of the Shipping Bills. The said stnaind The said Standing Order prescribed the detail procedure for processing of the Drawback claims and the role of Tally Sheet Clerk was confined to the Data Entry in a specified column of the relevant annexure of the said Standing Order. Further I find merit in submission of Shri. Rajesh Pamnani that alleged non-matching of drawback claim with the duplicate copy of Shipping Bill, though not mentioned in the said Standing Order would not have been much help for detecting such cases of fraud and forgery. It is fact that Sh. Pamnani was not known to the modus operandi of Sh. G.S. Kohli-and not alleged even to be connived with Sh. G.S. Kohli and considering his confined role in whole process it is not proper to hold him as an abettor to a fraud of such magnitude. There is force in his submission that the allegation against him was a stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the authority and authenticity of the documents for monetary consideration. We find that Sh. Quershi in his statement dated 1.7.96 stated that the signatures and initials on the impugned s/bills appeared to be of his, however, he further stated that he would verify from the job register whether these were handled by them. In his later statement dated 14.11.96 recorded by the CIU, he stated that after going through the records, he finds that these S/Bills were not pertaining to them. He further stated that the signatures on the S/Bs were not his. He stated that his earlier confession on 1.7.96 was due to tension as he was mentally upset. He further stated that at the relevant time Shri. R.S.Singh used to handle the work at Nhava-Sheva. We find that the department did not conduct further investigation to prove that this denial was after-thought. It has not been established by the handwriting expert that the signatures are of Shri. Querishi. Hhence, found with substance. Similarly, we find that in statements of Shri. Manohar Badheka, partner of Pal India Shipping Agency recorded on 18.06.96 & 21,06,96, he stated that the signatures on the S/Bs were not of his, neither of his p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
