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TMI Blog2018 (1) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... signments covered by five shipping bills filed by Poppy Leather & Apparel, Coimbatore and another five filed by R.G. Impex, Mumbai. The goods consigned for export had been declared as Leather shoe upper for adults , with consignee name and address of United Kingdom. On examination of the packages, it was revealed that only 8 out of 64 cartons in case of Poppy Leather & Apparel and 8 out of 63 cartons in case of RG Impex were found to contain shoe uppers and the rest were found to contain only torn/used/soiled shoe uppers. Goods were placed under seizure. On examination by a leather expert, it was reported that the goods are finished and semi-finished new shoe uppers of inferior quality (in respect of 8 grades) and remaining goods were old and used leather shoe uppers of no commercial value. The goods consigned by M/s.Poppy Leather & Apparel was valued at Rs. 3,98,800/- instead of declared value of Rs. 91,74,640/- and in respect of RG Impex, the goods were valued at Rs. 3,97,200/- instead of declared value of Rs. 89,69,436/-. Investigations were extended to Custom House Agents and other persons. It appeared that though the country of declaration was declared as UK, the airway bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by M/s.Skylark Cargo Services against imposition of penalty of Rs. 3 lakhs under Section 114 (iii) of Customs Act, 1962. Appellants are a CHA. It has been alleged that appellants were one of the three CHAs whose services were utilized in filing the shipping bills of the fictitious export firms allegedly floated by Shri K. Gunasekhar, S.Divakaran and his associate Shri K. Jayaraman. 3.2. When the matter came up for hearing, Ld. Advocate Shri S. Murugappan takes us to para-82 of the SCN to contend that one Shri S. Balakrishnan who was the permanent employee of K. Gunasekhar had clandestinely obtained ID card from customs as if he is an employee of the CHA of the appellant with the intention to carry out clearance work of export consignment of the export companies floated by their employer of that person. Ld. Advocate submits that said S. Balachandran was employed by them for two years and they have obtained an identity card for bonafide business. He further contends that said Balachandran has forged the signature of authorized signatory of the company. He contends that appellant had no link with Shri Gunasekhar and that they were only victim of the fraud committed by the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted in a statement that she had signed documents for opening bank account and opening of M/s.Niqua Imports & Exports for export business as deposed by K. Jayaraman who is close associate of her employer Shri S. Divakaran; that appellant has wilfully abetted Divakaran in the fraudulent claim of ineligible drawback. Accordingly, penalty imposed on her under Section 114 (iii) of the Act is very much in order. Appeal No.C/247/2010 5.1 The appeal has been filed by Shri V. Devendrudu, Custom House Agent. against imposition of penalty of Rs. 3 lakhs under Section 114 (iii) of Customs Act, 1962. It has been alleged that appellant had handled shipments of the companies floated by Shri K. Gunasekhar in the capacity of a CHA. Ld.Advocate Ms. L. Mythili appeared on behalf of this appellant. It is contended that appellant was not aware of illegal activity in whatsoever manner and did not know anything about export proceeds; that only his employee Shri Balachandran along with Shri G.Arumugam were attending to export clearance work; that appellant had not signed any of the documents as he was not authorized to do so. Shri Balachandran had stated that he only had signed all the documents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved that appellant has abetted Shri S. Divakaran in fraudulent and ineligible claim in respect of the clearances effected in the name of the said firm. Therefore, the appellant is very much liable for penalty under Section 114 (iii) of the Customs Act, 1962. Appeal No.C/256/2010 7.1 This appeal is filed by Shri Thambi T Abraham, who is a CHA and proprietor of M/s.Fashion Focus against imposition of penalty of Rs. 2 lakhs imposed under Section 114 (iii) ibid. It is alleged that appellant, as instructed by Shri K. Gunasekhar, had signed documents for obtaining IEC number from DGFT and also had signed application and other documents for obtaining bank account at IDBI bank. It is also alleged that appellant had signed blank cheques and had been paid Rs. 40,000/- and in this manner had wilfully abetted K.Gunasekhar in the fraudulent claim of ineligible drawback and hence has been penalized Rs. 2 lakhs under Section 114 (iii) of the Act. 7.2 The appellant was represented by Shri S. Krishnanandh, Ld. Advocate. On behalf of the appellant, it has been contended that he is an employee of a regular CHA in Custom House; that he came into contact with K.Gunasekhar through S.Divakaran; tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; that he was not aware of the exports made by the said firm and did not receive any monetary benefits. He takes us to para 254 at page 167 of the impugned order wherein it is recorded that Shri. K. Jayaraman has admitted that drawback amounts sanctioned to M/s.Heritage Fashion Park has been carried out by Shri K. Jayaraman without the knowledge of Shri K.R. Narayanan. 9.2 Revenue on the other hand contends that appellant had admitted to his interactions of lending his name to float a company and open bank account and giving blank signed cheques to S. Divakaran. He cannot plead ignorance or lack of knowledge of his actions and hence penalty imposed on him is very much justified. 10. Heard both sides and have gone through the facts. 11. In all these cases, the appellants have claimed that they had been taken for a ride by the main protagonists namely Shri K.V. Mahesh Kumar, Shri K. Gunasekhar & Shri S.Divakaran. The have pleaded ignorance of their actions and the consequences that came about therefrom. The CHAs concerned also have contended that they themselves had not signed the shipping bills. However, as seen above, they had either enabled the grant of CHA identity card to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nturies ago, that fraud avoids all judicial acts, ecclesiastical or temporal , was recognized noticed by Hon'ble Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853. Apex Court has further held that an act of deliberate deception with the design of securing something by taking unfair advantage of another is a fraud . Fraud is a cheating intended to get an advantage. A person whose case is based on falsehood has no right to seek relief in equity. In Commissioner of Customs v. Essar Oil Ltd., (2004) 11 SCC 364 = 2004 (172) E.L.T. 433 (S.C.), their Lordships of the Supreme Court have observed that it is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad." 13. This being so, we are of the firm opinion that appellants herein certainly cannot escape penalties. However, taking into consideration all the facts of the case and especially considering that there is no allegation that the appellant themselves had benefited from ant part of the drawback fraudulently obtained by the main operators, we find there is a case for reduction in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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