TMI Blog2018 (1) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... ening - We therefore afraid that their arguments do not cut any ice. Litigants are expected to come with clean hands. - appellants herein certainly cannot escape penalties. Penalty though levied but reduced - Appeal allowed in part. - C/230/2010, C/233/2010, C/247/2010, C/248/2010, C/256/2010, C/257/2010, C/269/2010 - Final Order No.40130-40136/2018 - Dated:- 19-1-2018 - Ms.Sulekha Beevi C.S. Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri S.Murugappan, Advocate (Sl.No.1) Shri G. Derrick Sam, Advocate (Sl.No.2,7) Ms. L. Mythili, Advocate (Sl.No.3) Shri SivaramanShabnam, Advocate (Sl.No.4) Shri S. Krishnanandh, Advocate (Sl.No.5) None for Sl.No.6 For the Appellants Ms.P.Hemavathy, Commissioner (AR) Shri K. Veerabhadra Reddy, JC (AR) For the Respondent ORDER Per Bench All these appeals arise relating to same impugned order, they were heard together and are also being disposed by this common order. 2. The background of all these appeals is that on the basis of intelligence that on misuse of drawback benefit by certain exporters, Customs Officers intercepted on 08.09.2005, two export consignments covered by five shipping bills fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of law and confiscation of seized goods in respect of Poppy Leather Apparel, RG Impex. The process of adjudication has culminated in the impugned order dated 21-01-2010, inter alia confirming the proposals in the SCN and also imposing penalties on noticees under various provisions of law. Out of 105 persons to whom the impugned order has been issued, the appeals have been filed to this forum by M/s. Skylark Cargo Services (C/230/2010) and Ms. K. Ranganayaki Alias Preeti Ramesh (C/233/2010), Shri V.Devendrudu (C/247/2010), Shri K. Sivagnannam (C/248/2010), Shri Thambi T Abraham (C/256/2010), Shri S. Pattabiraman (C/257/2010) and Shri K.R. Narayanan (C/269/2010). As all these appeals emanate out of the same impugned order, they are taken up together for common disposal. 3. On 27.10.2017, when the matter came up for hearing, the Ld. Advocates representing the appellants made submissions in support of the appeals filed by them. The summary of the submissions made by the concerned Ld. Advocate as the arguments of the authorized representative for the Revenue, in each of these appeals are summarized as under:- Appeal C/230/2010 3.1 The appeal has been filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there are more than sufficient grounds and reasons to attract provisions of Section 114 (iii), hence the penalty imposed on the appellant is very much justified. 3.4. In response, Ld. Advocate takes us to para-87 of the SCN to contend that signatures affixed in the shipping bills were found to be forged/impersonated, which fact will support the contentions of appellant. Appeal No.C/233/2010 4.1 This appeal has been filed by appellant Ms. K. Ranganayaki alias Preeti Ramesh, proprietor of M/s.Niqua Imports Exports against imposition of penalty of ₹ 2 lakhs under Section 114 (iii) of the Customs Act. The appellant was represented by Shri G. Derrick Sam, Ld. Advocate. It has been contended that she was only a namesake proprietor and IEC number was obtained by affixing her photograph which was given at the time of seeking employment from Shri S.Divakaran with whom she had worked earlier; that she was not aware of Divakaran and the persons who had claimed drawback fraudulently by fabricating export documents and that she had not received any drawback amount and was not beneficiary to any of the transactions reflected in the investigation. 4.2 Revenue has counte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque books without mentioning any amount. 6.2 The appellant was represented by Shri S. Sivaraman Shabnam, Ld. Advocate. He submitted that appellant was not involved in fraudulent activities of exports and drawback claim by Shri Divakaran and his associate Shri Jayaraman; that appellant was innocent and did not even go to the bank to open account but had signed papers shown by Shri K. Jayaraman on the condition that onions were supposed to be exported; that appellant did not also take any money from his bank account as all the money was taken by Shri K. Jayaraman. 6.3 On the other hand, Revenue contends that it has come to light that appellant had signed the blank cheque books without mentioning any amount, which shows that he was fully aware of the purpose and its consequence. Shri K. Sivagnanam affixed his photograph and signature for the purpose of receiving the drawback amount for improper exports made through this company. The amount of drawback so received has been transferred to the account maintained by him with State Bank of Bikaner and Jaipur from which the amounts have been drawn by him and payments were made to other firms floated by main offenders like S.Divakaran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 114 (iii) of the Customs Act for abetment of Shri S.Divakaran in fraudulent availment of ineligible drawback. The appellant was not present either in person or through an authorised counsel. 8.2 Revenue contends that appellant had admitted in his statement and also during personal hearing that he had signed the application and other legal documents for opening bank account at Union Bank of India; that he had also signed blank cheque leaves which were used by S.Divakaran for withdrawing fraudulent drawback amount. Thus, appellant has knowingly and wilfully abetted S.Divakaran in the fraudulent claim of ineligible drawback and therefore even if he has not received any drawback amount, the penalty imposed on him is very much justified. Appeal No.C/269/2010 9.1 This appeal has been filed by Shri K.R.Narayanan against imposition of penalty of ₹ 2 lakhs under Section 114 (iii) of the Act. It has been alleged that this appellant had also abetted Shri S. Divakaran. The appellant was represented by Shri G. Derrick Sam, Ld. Advocate. It is contended that appellant had only permitted to float M/s.Heritage Fashion Park in his name but did not know the purpose behind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. He can be summarily thrown out at any stage of the litigation..... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another s loss. It is cheating intended to get an advantage.... 12. The Hon'ble Supreme Court in the case of CC Vs Candid Enterprises - 2001 (130) ELT 404 (SC) interalia held as under : 6.The Tribunal would appear to have lost sight of the cardinal principle which is enshrined in Section 17 of the Limitation Act that fraud nullifies everything. If the Tribunal was satisfied, as it ought to have been upon these facts, that there might be some fraud, there was every reason for it to condone the delay and to hear the appeal. The judgment in Ajit Singh Thakur s case has no application to facts such as these. The legal maxim fraud vitiates everything is very relevant to the facts herein. On this very principle, the Tribunal in the case of Bilwa Labs Vs CC Bangalore - 2013 (294) ELT 510 (Tri.-Bang.) has held as under : 7.6 It is established principle of law that fraud and justice do not dwell together. An assessee acting in de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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