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TMI Blog2012 (6) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Director General of Foreign Trade, Ludhiana also contained the description as above. The copies of GRs submitted with the bank showed the description of goods as 'crank shaft for high speed compressor." 3. During the course of investigation, statement of various persons were recorded. M/s. Magna Impex is the proprietorship concern in the name of Shri Satbir Singh. Shri Satbir Singh is a clerical employee of the appellant Pavitar Singh who is practicing Chartered Accountant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 clandestine activities. The entire evidence on record shows that it was Shri Ashok Kumar, Shri Gurkirpal Singh who connived with his employee to float the said concern and undertaken fraudulent exports. He submits that he was only engaged in the preparation of documents for DGFT as a qualified chartered accountant and in such a situation, he cannot be held responsible for aiding and abeting the fraudulent export or claim other benefits so as to invoke penal action against him. 6. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 disclosed the names of the buyers, who purchased fraudulently obtained DEPB scrips. 9. Learned AR further submits that Shri Satbir Singh. Proprietor of M/s. Megna Impex is a low paid employee of Pavitar Singh and from the statement of Shri Ashok Kumar, it becomes clear that M/s. Megna Impex was floated as a dummy unit. The appellant played active role in floating and running of Megna Impex. He applied for IEC number and registration of Megna Impex with Engineering Export Promotion counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 20%. The question which arise is as to whether the said statement of Shri Ashok Kumar can be pressed into service so as to implicate the appellant. Admittedly, the said statement is in the nature of statement of co-accused and requires corroboration from independent sources. There being none, the said statement cannot be made sole basis for holding against the appellant, as per the settled law on the point. 15. We also hold that various statement of Shri Satbir Singh recorded during the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lties. 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 such floatation and for the export purpose, for filing of applications and documents before the government authorities. The fact of recovery of said document along with stamp of M/s. Megna Impex was on account of his handling the professional work of the said export unit. He has deposed that he was not handling any shipping bills or filing of any documents before the Customs and sale of DEPB sales credit in the market etc. All such export work along with the bank dealing was being done by Shri Ashok Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Megna Impex or merely because the proprietor of M/s. Megna Impex, who stand utilized by Shri Ashok Kumar and Shri Gurkirpal Singh, happened to be an employee of the appellant, cannot be made a basis for imposition of penalty upon him. We may hasten to add here that the entire evidence discussed by us may lead to a doubt about the appellants indulging in fraudulent activities of M/s. Megna Impex, but cannot be adopted as a legal evidence for upholding the charge of aiding and abeting. Mere kn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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