TMI Blog2021 (7) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... the fraudulent exporters to draw heavy duty draw backs. Apparently, this inquiry was conducted post the alleged fraudulent exports were already made. It is abundantly clear that to constitute abetment the abetor has to come into action of abeting the offender prior later does or fails to do an act which amounts to committing the crime/offence. The market inquiry was post the commission of crime of fraudulent export of handwoven carpets which were otherwise liable for confiscation to wrongly avail higher duty draw-back by Mr. Sajjan Kumar. Hence, no question arises of abeting him at a stage later than the commission of said fraudulent exports. There is no evidence produced by the department which may prove that the appellant ever instigated or conspired or intentionally aided Shri Sajjan Kumar to fraudulently export the hand woven carpets to traders in different countries and to take as high as 12 Crores of drawback in DAPL and higher drawback in other companies as well. There is no evidence that appellant has been the beneficiary of these amounts or part thereof. Penalties under Section 114 (iii) 114 AA - HELD THAT:- Abeting is something much more than the negligence or dere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two companies were also found to be solely controlled by Sajjan Kumar: 1. Indus Chemitex Ltd. 2. S.R. Goyal Sons (HUF) Later he was found to be the key-person for two more firms, namely, M/s. Indus Chemitex Ltd. and S.R. Goyal Sons (HUF). Based on the said investigation searches were conducted at various places including residence and the offices of various companies of Shri Sajjan Kumar. His statement and statement of various other concerned were got recorded. After recovering various incriminating documents that the market inquiry got conducted by the officers of ICD, Ballabgarh with sample of hand-made knotted carpet which was drawn out of 10 shipping bills filed by M/s Durga Apparel Private Limited (DAPL) on 29.11.2010. The said inquiry was got conducted by the present appellant the then Inspector (now retired) alongwith another Inspector namely Shri Naresh Kumar. The inquiry got conducted from two firms in Rohini, namely, M/s. S.R. Goyal and Sons and M/s. Indus Chemitex Ltd. 2. After receiving the inquiry report from the appellant that DRI approached both the said companies, recorded the statements and found that both those firms were also controlled by the kin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to involve with the defaulting exporter nor any collusion for defrauding the Government Exchequer by claiming duty draw-back on high value. Otherwise also there is no such allegation in the Show Cause Notice, nor any evidence has been produced on record by the Department to show that the market inquiry was conducted by the appellant with a malafide intend to extend undue benefit to the exporter and to help him export such goods which otherwise were liable for confiscation. Nor there is any evidence to prove that appellant has been the beneficiary of the higher duty drawback claimed by the exporter. In the given circumstances, the same cannot be held to be an act of abetment. No question of imposition of penalty on the said ground at all arises. The order under challenge holding the involvement and collusion of the appellant with the exporters in exporting their goods on highly inflated value to defraud the Government Exchequer are alleged to be absolutely wrong and baseless. The order under challenge is, accordingly, prayed to be set aside. Appeal is prayed to be allowed. 6. While rebutting these allegations, ld. D.R. has mentioned that the appellant and the another Inspector, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... important to understand the ingredients of the penal offence, namely, abetment. Section 107 of Indian Penal Code 1862 defines abetment to include instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omissions to the doing of the said act. Thus, abetment under the Indian Penal Code basically takes place when a person abets the doing of a thing by following:- 1) Instigating a person to commit an offence, or, 2) Engaging in a conspiracy to commit it, or 3) Intentionally aiding a person to commit it 9. Instigation basically means suggesting, encouraging or inciting a person to do or abstain from doing something. Thus, instigation is something which must be sufficient to actively encourage a person to commit an offence. It should not be mere advice or simple suggestion. Conspiracy on the other hand means an agreement between two or more persons to commit an unlawful act where conspirators must actively agree and prepare themselves to commit that offence. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollected statements recorded by the department are absolutely silent about any alleged role of the appellant. 11. No doubt, the penalties under Section 114 (iii) 114 AA having been confirmed by the Adjudicating Authority below, based on the facts that both the firms which were inquired by the appellant were not competent to give the rate of the sample of the carpets taken from alleged exports being found to be the companies of Shri Sajjan Kumar only and none of them being the exporter of carpets on the date of market inquiry. Their IEC code for garment/carpet export is four months later than the date of inquiry. But these facts are, at the most sufficient to show that: (i) the appellant, as inquiry officer, was not diligent enough to gather relevant details. (ii) He failed to appreciate the relevant facts. (iii) Appellant conducted enquiry in casual improper manner. To my opinion such negligence on part of appellant amounts to dereliction of his duties but not alleged abetment. 12. To my opinion abeting is something much more than the negligence or dereliction of duties. As already discussed above, the noticed negligence on part of the appellant unless and unti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Court has analyzed the phrase good faith and has given protection to Government servants discharging their statutory duties. Further, I find that the entire onus was of the Department to bring on record some cogent evidence to prove the positive act of alleged abeting on part of the appellant. But there is nothing produced on record about any nexus of the appellant with the allegations of collusion and connivance with Sujjan Kumar for abeting the over-valuation of goods exported. Commissioner, Central Excise, New Delhi vs. MI Khan 2000 (120) ELT 542 of this Tribunal is another decision where it has already been held that unless ingredients for proving the charge of abetment have been brought out in the Show Cause Notice and when there is no admission by the Custom Officer for alleged abeting, penalty under Section 114 cannot be imposed. Though the Adjudicating Authority below has taken a plea that the appellant in his statement has admitted for the alleged offence but the perusal of the document on record shows that the admission of appellant is only to the fact that the inquiry conducted by him with his Co-Inspector Naresh Kumar is an improper inquiry that too after it was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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