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2016 (11) TMI 175 - CESTAT MUMBAI

2016 (11) TMI 175 - CESTAT MUMBAI - TMI - Imposition of penalties - whether the appellants are involved in aiding and abetting fraudulent claim of drawback? - Held that: - As regard the repeated request of the appellant for cross examination of various persons, I find that Adjudicating authority has called witnesses for cross examination but they were not available therefore case was denovo adjudicated on the basis of available evidences. I do not find anything wrong in deciding the case on the .....

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e Adjudicating authority, I do not find any infirmity in the order. The impugned order is upheld and appeals are dismissed - decided against appellant. - C/86530 TO 86532/15 - A/90028-90030/16/SMB - Dated:- 1-9-2016 - Mr Ramesh Nair, Member(Judicial) Shri. G.B. Yadav, Advocate for the Appellants Shri. S.J. Sahu, Asstt. Commissioner(A.R.) for the Respondent ORDER These appeals are arising out of the Order-in- Appeal No. 49 to 51(Adjn./Exp)/2015-JNCH/Appeal-I dated 11/5/2015 passed by the Commissi .....

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a Exports vide three shipping bills attempted the export of garment. The actual value of the garment was found to be approximately ₹ 16 lacs whereas the value declared in the export documents were 3.5 crores, accordingly they claimed 15% draw back on the declared value. There is separate proceedings with regard to the fraudulent claim of drawback. In the present case, the issue involved is whether these three appellants were involved in the fraudulent claim of drawback. Investigating autho .....

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lhi were recorded. In all the statements they have implicated that Shri. Rajendra Kanodia and Shri. Ajit Kumar Agarwala are the key persons involved in exports and fraudulent claim of drawback. The adjudicating authority, after remand twice by this Tribunal, confirmed the imposition of penalties on the appellants for their involvement of aiding and abetting fraudulent claim of drawback. Being aggrieved by the Order-in-Original, appellants filed appeals before the Commissioner(Appeals), who has d .....

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e remand orders dated 30/8/2007 and 21/5/2015 of this Tribunal. He submits that as per the Adjudicating authority witnesses were not available for cross examination, therefore statements should not have been relied upon and if it is so no case can be made out against appellant as the sole basis of penalizing appellants are statements of the aforesaid persons therefore order of the lower authorities are in gross violation of natural justice. In this regard, he place reliance on Honble Delhi High .....

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im was utilized by another 3rd party, Aruna Impex and not M/s. Chanakya Exports and dealing with Chanakya exports goods on behalf of the appellant had got cancelled before the goods were exported by M/s. Chanakya Exports were made by M/s. Chanakya Exports by manipulating documents like, LC, contract and even shipping bills which shows that account of M/s. Terai Overseas Pvt Ltd was typed later after the exports. The statement of Rajiv Gupta of M/s. Rainbow Collection, Jaipur alleging that duty d .....

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t Shri. V.P. Singh has accepted that he got drawback and the same was corroborated. The statement of Shri. Raju Taneja on 4th June which clarifies, he exported the goods and received the drawback of ₹ 41 lacs out of which he returned ₹ 15 lacs to the department. The appellant has neither got any benefit of drawback nor any foreign exchange as their letter of credit was not utilized for this export at all. He alternatively submits that the penalty imposed on the appellant are otherwis .....

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y on the appellants were imposed for aiding and abetting the fraudulent claim of drawback, therefore even if it is accepted that appellants have not been benefited as regard the receipt of drawback. As per the overall facts it is coming out that they have active role in the entire modus operadi, accordingly they were rightly charged under Section 114(iii) of Customs Act, 1962. He placed reliance on the Hon ble Supreme Court judgment in case of Collector of Customs, Madras and Others Vs. D. Bhoor .....

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carefully considered the submissions made by both sides and perused the record. 6. As regard the fraudulent drawback claim against exports made through M/s. Chanakya exports on account of M/s. Terai Overseas Pvt Ltd, the same has been established. Now the only issue to be decided in these appeals is whether the appellants are involved in aiding and abetting fraudulent claim of drawback. In the entire facts and circumstances and the evidences relied upon in the case, I find that M/s. Terai Overs .....

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ive knowledge of Shri. P.P. Singh, Shri. Ajitkumar Agarwala on behalf of the M/s. Terai Overseas Pvt Ltd. The beneficiary of the exports was M/s. Terai Overseas Pvt Ltd as reflected in shipping bills of the subject goods consignment. It was observed that even the movement of the goods meant for export was coordinated by Ajit Kumar Agarwala with Shri. Bhim Agarwal, who sent the material from Jaipur to Mumbai and again back to Mumbai only on the instructions of the Shri. Ajit Kumar Agarwala. It is .....

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i. Ajit Agarwala remained the guarantor for packing credit finance extending for Terai Overseas Pvt Ltd. Documents pertaining to agreement for export by M/s. Terai Oversease Pvt Ltd were found in the corporate office of Agarwala group of companies. In respect of M/s. Chanakya Export on account of M/s. Terai Overseas Pvt Ltd the premium for marine insurance policy was paid by cheque from the account current of M/s. Terai Overseas Pvt Ltd. This shows that even Shri. Ajit Kumar Agarwala said to hav .....

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