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TMI Blog2018 (2) TMI 1799X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered on 29-2-2013 by C.B.I., ACB-Chennai. 4. According to the First Information Report, under the guise of Air-conditioners parts, full Air-Conditioner had been imported by M/s. Majestic Impex and the same has been cleared by the Customs officials causing wrongful loss to the Government a sum of Rs. 42,05,597/- causing corresponding wrongful gain to the importers A-6 [Sheikh Parith] and A-7 [Basheer Ahmed]. In the scheme of conspiracy, the petitioners Kathirvel [A-1], Assistant Commissioner of Customs and R. Mani [A4] Superintendent, examining official at SANCO deliberately allowed the clearance of the goods though found that the consignment are not Air-Conditioners parts but Full Air-Conditioners. 5. Based on the above information, the investigation agency C.B.I. conducted the investigation examined witnesses and after found that Shri P. Kathirvel [A-1] Assistant Commissioner of Customs and Shri Sanjay Kakkar [A-2], Appraiser of Customs department though having prior knowledge that the goods are pre-packaged commodities and the CVD should be assessed on MRP, deliberately did not seek the details of MRP/RSP and deliberately did not assess the CVD on MRP basis. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugan [A-3], Examiner deliberately failed to revert the subject Bill of Entry to the assessing group for re-assessment of unit price and the assessable value in spite of finding the import goods to be Air-Conditioners during examination. 10. Shri R. Mani [A-4], Appraiser of Customs, Shri S. Gugan [A-3], Examiner deliberately omitted to inform the assessing group that the goods found during examination were restricted items which require import licence from DGFT and the subject goods were liable to confiscation and further proceedings. They dishonestly omitted to refer/subject the imported Air-Conditioners for proper adjudication to facilitate for confiscation of goods, levy of fine and penalty as there was misdeclaration with respect to description and value and non-compliance of statutory obligations by the importer and thus cheated the Customs Department. 11. The petitioners herein contended that they are innocent and they are nothing to do with the alleged misdeclaration or evation of Customs duty and they have discharged their duty in accordance with the Customs Manual. Therefore, in the lack of prima facie evidence against the petitioner they should be discharged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the description of the goods as declared in the Bills of Entry submitted online match the goods actually imported. Unless the official who is responsible for physical examination inform the superior officer namely appraisers [A1 and A2] at customs house, it is impossible to find out whether there is any misdeclaration of the goods. In this case, while the bills of entry disclose the goods imported as "parts of Air-Conditioner in door unit" assessment made by appraiser on the line of bill of entry and the connected documents at customs house cannot be faulted. In fact the writ petition filed by A2 [Sanjay Kakkar] has been allowed by Hon'ble High Court quashing the criminal prosecution against him. This petitioner who falls on the same footing is also entitled for the said benefit. 16. Per contra, the Learned Special Public Prosecutor would submit that the case against A2 [Sanjay Kakkar] was quashed on a technical ground for want of proper sanction to prosecution. Therefore, A1 the petitioner in Crl. R.C. No. 47 of 2018 cannot seek any parallel and parity citing the order passed in the writ petition. Insofar as the procedure for clearing goods imported, no doubt it is governe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on forged invoice and Bills of Entry. 19. Quashing of complaint on technical reason for want of sanction will not ensure any benefit to the co-accused. It is now well settled by catena of the judgments that when the prosecution has placed before the trial Court prima facie material for the trial, the Court cannot probe into the records summarily and discharge the accused persons. In this case, the material placed by the prosecution, if proved to be true it will lead to conviction. 20. The material relied on by the prosecution indicates that forgery of invoice, misdeclaration of goods, wrong Tariff code for the goods imported and loss of Revenue to the State. The observation of the Commissioner in the adjudication proceedings that there was no loss to the State cannot be considered at this juncture, because on going through his report, though he has discussed at length about various proposition of law, he has not addressed the core issue of mis-declaration of goods and wrong reference of Tariff code. In the disputed transaction he has not stated how the State has not incurred any Revenue loss when the different rate of Tariffs are prescribed for full Air-Conditioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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