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Imtiyaz Ahmed Versus Commissioner of Customs Mangalore-Cus

2016 (3) TMI 774 - CESTAT BANGALORE

Imposition of penalty - Section 114 (i) of the Customs Act, 1962 - Aiding and abetting the fraudulent export - Held that:- separate proceedings were initiated against the same appellant arising out of the same set of facts and circumstances resulting in imposition of a separate penalty of ₹ 2 crores upon him. The appeal filed by the appellant against an earlier order, which relate to same set of investigations, was considered by the Tribunal. Inasmuch as the earlier appeal of the same appe .....

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so and the penalty is set aside. - Decided in favour of appellant with consequential relief - C/273/2011-DB - Final Order No. 20199 / 2016 - Dated:- 19-2-2016 - SMT ARCHANA WADHWA, JUDICIAL MEMBER AND SHRI ASHOK K. ARYA, TECHNICAL MEMBER For the Petitioner : Mr Karan Bharioke , Adv For the Respondent : Mr. Mohammad Yusuf, A.R. ORDER PER : ARCHANA WADHWA The challenge in the present appeal is to imposition of penalty of ₹ 13,00,000/-on the appellant under Section 114 3(i) of the Customs .....

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6.2009. It was found that out of 390 cartons only 358 were filled and even out of these 358 cartons 100 cartons were fully empty without any goods. The value of the filled goods was also found to be much on the lower side. As a result of further investigations, it was found that total value of the goods was around ₹ 6.25 lakhs as against the total value of ₹ 1.05 crores declared by M/s SLN Overseas Traders. 3. During the further proceedings, statements of various persons were recorde .....

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and Shri Feroz Khan based in Bangalore and he only benefitted on some commission basis. 4. Based upon the result of the investigations, proceedings were initiated, inter alia against the present appellant for imposition of penalty upon him by way of issuance of show-cause notice. The same stands culminated into the present impugned order. It is appropriate to reproduce a particular paragraph under which the Commissioner has imposed penalty upon the assessee. 144.2 Most of the legal issues raise .....

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rkness and grow up in stealth, Those involved will take care to ensure that their foot prints are obliterated, so as to make it difficult to link them to the illegal act. This does not mean that the department is helpless in booking the evaders under such circumstance. Law provides that circumstantial evidence can be taken to prove the wrongdoing. As per Section 105 of the Evidence Act when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. The .....

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he illegal activity being done by him. In para 130..2 it has been brought out that the activities undertaken by M/s SLN were fraudulent in nature. The sale proceeds in respect of the export goods under seizure covered under three shipping bills were received as Advance Remittances against Export from Bareeq Al-Sharq General Trading Co., Diera, P.O.Box No 115049, Dubai, even prior to the physical export of the goods. The aforesaid amount so received as sale proceeds into the current account No. 1 .....

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ly even without the goods leaving India. ........ ........ ........ Shri Suresh Prabhu, Proprietor of M/s SLN has also divulged these aspects in his statements given to DRI and stated that such modus operandi was adopted by him in all the earlier consignments of ladies garments exported in order to avail undue duty free import benefit under DFIA scheme. The benefit of the judgment in Francis Stanly @ Stalin v Intelligence Officer, Narcotic Control Bureau is distinguishable, in as much as the fac .....

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to the officers. The statemeents of all the others also, are found to corroborate the facts stated by each other. Hence I conclude hat, there was no threat and coercion during the recording of statements and that all statements were given on the free will of those who gave the statements. From the above, it is evident that the export remittances were made to the Mid-Corporate Branch, Bangalore of UCO Bank for all the exports by M/s SLN under subject three shipping bills. It appears that advance .....

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to the economy of the country by availing undue duty free import benefit owing to their fraudulent exports and by their illegal activities of money laundering. From the above it is seen that Shri Initiaz Ahmed operating from Dubai, who is a blood relative of Shri Feroz Khan, which relationship provides the necessary degree of trust and confidence required in such illegal activities, is part of the consortorium consisting of himself, Shri Suresh Prabhu and Shri Feroz fhan to execute the fraudule .....

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ng the same through his counterparts in India. The statement of Shri Suresh Prabhu dated 1.6.2009, 2.6.2009 and 22.10.2009, statement of Shri Feroz Khan dated 1.1.0.2009 discussed in the brief above corroborated by the statements of UCO Ban Officials supported by the bank transaction documents remittances /withdrawal clearly indicates the role played by Shri Imtiaz Ahmed and therefore is liable for penal action. Therefore, a reasonable inference can be made from all these evidences, that the pre .....

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premium. Shri Imtiaz Ahmed has also not come forward not to make himself available for examination by the investigating officers. From this can be inferred his guilty mind. As stated earlier the whole systems worked with clock work precision like a well-oiled machine, without any breakdown. The entire cycle of money receipt into the country and its further dissemination downwards was done smoothly even without the goods leaving India. This could not have been possible without all the actors work .....

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parate proceedings were initiated against the same appellant arising out of the same set of facts and circumstances resulting in imposition of a separate penalty of ₹ 2 crores upon him. The appeal filed by the appellant against an earlier order, which relate to same set of investigations, was considered by the Tribunal and vide Final Order No. 20056/2016 dated 11/01/2016 the appeal was allowed by observing as under: 7. In view of the above, in the peculiar facts of the instant case we find .....

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er, the said shipping agent has not been made an accused. We cannot uphold the invocation of penal provisions only on the basis of such uncorroborated confessions of the co-accused. No link of the Appellant to the entities who either received the exported goods and/or paid for them has been established. The Appellant has not been found involved in procurement, export or any other activity connected with the exports of SLN. Whether or not the appellant is cousin brother of Feroze Khan is wholly i .....

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