TMI Blog2012 (6) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... C/182/2008 50,000 6. C/183/2008 75,000 7. C/184/2008 75,000 8. C/185/2008 1,00,000 Total 4,80,000 2. As per facts on record, one M/s. Megna Impex, 7 - Sehdev Market Jalandhar, exported certain goods under the claim of DEPB scheme. The goods were described in the 33 shipping bills as 'crank shaft for high speed compressor having DEPB credit of 14%. However investigations conducted by Anti Smuggling Wing of Customs (Prev) Commissionerate, Amritsar revealed that said description was changed/altered to the 'timing shaft for mercedes truck' having DEPB credit of 22%, by substituting/swapping the documents. Whereas the duplicate copies of shipping bills and the other related documents available with the Customs at CFS, Ludhiana showed the description of export items as 'timing shaft for mercedes truck' and the other export promotion copy and DEPB of the shipping bills resumed from the office of Joint Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it was in due course of his profession, he filed the application for I.E Code and other export related work, on behalf of M/s. Megna Impex. The submissions of various persons recorded during the course of investigation revealed that the said filing of applications of I.E code and for claiming DEPB scrips were in the ordinary course of his profession. Learned advocate submits that only piece of evidence against the appellants is the statement of Shri Ashok Kumar, wherein he deposed that unlawful income out of fraudulent export was to be shared between Shri Ashok Kumar and appellant in the ratio of 40%, 40% and 20%. He submits that apart from the said statement of Shri Ashok Kumar, there is nothing on record to implicate him. The statement of Shri Ashok Kumar being in the nature of statement of co-accused cannot be relied upon solely, without being their any evidence to that effect. As regards his employee, having no financial means to undertake huge exports, being the proprietor of export firm, i.e. M/s. Megna Impex, he submits that there is no evidence on record to show that he was a party to the creation of the said proprietary concern with intent to indulge in the clandestin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never exported by them though they have been mentioned the same in the shipping bills. Instead, they have exported hand tools with much lower value. All these were done with a motive to obtain unlawful gains. He further clarifies that all these actions were done with a motive; Shri Satbir Singh has been made the proprietor of the exporting firm so that whenever these acts are detected by any agency they should not be held responsible but only a small time employee of Shri Pavitar Singh is caught, being the proprietor of M/s. Megna Impex. Shri Ashok Kumar further clarified that profits from the said export were to be distributed between Shri Gurkirpal Singh, himself and Pavitar Singh in the ratio of 40% and 40% and 20%. He also detailed the modus operandi adopted by them for remitting the value of the exports from the banks accounts, receiving back the money through hawala operators in Dubai and getting the blank cheque books from Shri Satbir Singh, proprietor of M/s. Megna Impex, He also disclosed the details of his visit to Dubai and arranging the journey of Shri Satbir Singh to Dubai. He further offered to pay the DEPB benefit availed by him and Shri Gurkirpal Singh. He also disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be decided in the present appeal is as to whether there is enough evidence against the appellant so as to implicate him in the fraudulent export made by M/s. Megna Impex and to hold that he was aiding the abeting the same. Revenue's case is that M/s. Megna Impex was floated with one of his low paid employee as proprietor of the same. As per the statement of Shri Ashok Kumar, the appellants was also one of the beneficiary to the illegal action, though the appellant has himself denied so. We proceed to discuss various evidence relied upon by the adjudicating authority as well as by appellate authority and the evidence placed on record by the appellants. 14. Strong reliance stand placed by the revenue on the statement of Shri Ashok Kumar, who had deposed that appellant was also a share holder in the illicit gains to the extent of 20%. We note that apart from Shri Ashok Kumar, no other person concerned with the case i.e. either Shri Gurkirpal Singh or Shri Satbir Singh has deposed to the effect that the appellant was to get 20% of the profit made by the firm. The appellants himself, in his statement recorded during the course of investigation has denied the fact of getting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Shri Gurkirpal Singh who floated the dummy unit under the name and style of M/s. Megna Impex, by using the name of Shri Satbir Singh as its proprietor. No where Shri Satbir Singh has deposed that Shri Pavitar Singh was also involved in floating of said firm or the misuse of his employees' name by Shri Ashok Kumar and Shri Gurkirpal Singh was with the knowledge of Shri Pavitar Singh with a motive that he being an employee of Chartered Accountant, can be of help in any future unforeseen difficulties. Infact, the said fact stands accepted by Shri Ashok Kumar in his initial statement that he and Shri Gurkirpal Singh floated the dummy unit of Shri Satbir Singh as proprietor with a motive that it will be Shri Satbir Singh who will be caught in a future difficulty. In the absence of any deposition by any person in their statement, about the active role played by Shri Pavitar Singh, we find it difficult to hold him liable for the penal action. 17. Shri Pavitar Singh, in his statement recorded during the course of examination deposed that Shri Ashok Kumar and Shri Gurkirpal Singh floated M/s. Megna Impex with proprietor Shri Satbir Singh, and he was only doing the paper work for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Customs authorities that it was he, who managed the entire affairs. Though we agree with the learned AR that the above finding under the Income tax Act are not binding upon the customs authorities, and cannot be considered as a leading evidence for setting aside the penal proceedings against the appellant, reference to the same are being made to draw support for the finding, which already stand arrived at by us on the basis of independent evidence. We also note that there is virtually no evidence on record showing financial involvement of the appellant in the export of the goods. It is not the revenue's case that the exported goods were purchased by the appellant or some contribution to the value of the same stand made by him. There is no evidence on record to show the financial involvement of the appellant in procuring the exported goods or any assistance rendered for export of the same. The evidence placed on record do not indicate activities undertaken by appellant to help Shri Ashok Kumar in his fraudulent exports. As such, merely because the appellant has applied for IE code number and for issuance of DEPB scrip on the basis of information provided by M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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