TMI Blog2007 (11) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... t), JNCH, Nhava Sheva, which confirms allegations of overvaluation, in respect of exports attempted to be made by M/s Hex Metal Mfg Co. [hereinafter referred to as "Hex"] proprietor Shri Sudhir Mehta @ Nayan Upadhyay, M/s Lalit Fabrics (hereinafter referred to as "Lalit") proprietor Shri Vinod Shukla @ Hitendra Vyas, M/s Tamarind Shoe Co. (hereinafter referred to as "Tamarind") proprietor Shri Abhijit Surve and M/s Rushi International (hereinafter referred to as "Rushi") proprietor Shri Bakul Parekh. The declared FOB values have, in the cases of all four exporters, been rejected and re-determined, and the goods themselves have been confiscated with option to redeem the same. In addition, penalty, under Section 114(i) of the Customs Act, 1962 (hereinafter referred to as "the Act") has been imposed on proprietors of all four exporters, as well as on Rajeev Agarwal, C R Unnikrishnan, Mufazzal Hakim, Ramesh Ashar, Sudhir Naik, M/s Shuttle Trans Shipping Co. Pvt Ltd and Shri Milind Surve. Out of these, except Shri Abhijit Surve, M/s Shuttle Trans Shipping Co. Pvt Ltd and Shri Milind Surve, all are in appeal before us. The impugned Order-in-Original drops the proceedings against H.S.San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice declared was $ 37.20 per piece, and the PMV thereof was Rs 1500 per piece. (iii) The 6 S/Bs of Lalit were in respect of 39996 pieces of "mens knitted T-shirts". The price declared was $ 11.70 per piece, and the PMV thereof was Rs 500/- per piece. (iv) The 2 S/Bs of Tamarind related to 7200 pairs of "sports shoes". The price declared was $ 55 per pair, and the PMV thereof was Rs 2400/- per pair. The total declared FOB value of the goods sought to be exported was Rs. 10,54,65,742/-, and total DEPB claimed thereon works out Rs. 1,55,12,060/-, as printed on the S/Bs. However, the DEPB copies of all 18 S/Bs are prominently endorsed to the effect that the available DEPB claim, and the value is as per the aforesaid Invoices bearing examination report on reverse. (In case of Lalit 3 cartons under Invoice no. 0504 were short stuffed, as per the examination report.) (c) The amended S/Bs printed on 14-05-03- These amended S/Bs show rate as "per dozen" as well as quantity in "dozen". The particulars appearing on these S/Bs are as under: (i) The 6 amended S/Bs of Lalit are in respect of 39996 dozen of "mens knitted T-shirts". The price declared is $ 11.70 per dozen, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the S/B are generated, in cases where DEPB is claimed, one copy being the "DEPB S/B". (x) Original copy alongwith the declaration (Annexure-A) and Check-list shipping bill is retained by Customs, and three copies of S/B (DEPB Copy, Exchange Control Copy and Exporter's Copy) are handed over to exporter/CHA, as the case may be. (xi) EP copy is not printed at this stage. (b) It is also relevant, in this context, to refer to Public Notice No. 65 dated 8.6.2000 and Public Notices No. 53/2001 dated 19.4.01 and 26/2002 dated 22.7.02 issued by the Mumbai Custom House. (c) Public Notice No. 65 supra stipulates, inter alia, thus: "The exporters will file details for DEPB shipping bills in he revised form as per Annexure "A" to this Public Notice. In case of DEPB Shipping Bills exporters are also required to file details as per declaration as per Annexure "D" in the format annexed to this Public Notice." Any query at the time of processing by Appraiser, DEPB cell or AC/DC(Export) may be obtained from the Service Centre and reply to the query has to be furnished through Service Centre." "The exporter may have issued invoice per dozen, but in such cases quantity has to be me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case. On 12.5.03, the S/Bs were filed in the EDI system prevalent in the Nhava Sheva Custom House, which requires the exporter to subscribe to a declaration as contained in Annexure "A" to be submitted, the specifics of which are to be found in Public Notice No. 65, dated 8.6.2000 (supra), issued by the Mumbai Custom House. According to this Public Notice, irrespective of whether the invoice relating to the goods mentioned the rate on "per dozen" basis, the quantity of the goods had to be mentioned in pieces, and not in dozens. It is a matter of dispute as to whether there were, originally, one or two sets of invoices (for each exporter) in the possession of Mr Unnikrishnan who presented them at the EDI counter - it is contended, by the appellants, that there was only one invoice, showing the quantity in " pieces/pairs", and rate as "per dozen" basis, whereas the Revenue contends that, there were, with him, two invoices, one showing the rate on "per piece/per pair" and the other on "per dozen", and that the former was presented to the EDI counter so that the value could be inflated 12 times and higher DEPB availed. It is not in dispute, however, that the Check List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the S/Bs. The letter requesting amendment read thus: "We request you to make following amendment in our above shipping bills. Unit Rate USD 11.70 per pc To Unit Rate USD 11.70 per DOZ Kindly do the needful and oblige." There can, therefore, be no dispute about the fact that the only amendment sought by Shri Unnikrishnan was for changing the unit of the rate, from "per piece" to "per dozen". However, when this requisite amendment was made by the EDI operator, owing to the peculiarity of the EDI system, which does not recognize two units, one for quantity and the other for rate, the amendment in the unit of rate from "per piece" to "per Dozen", also resulted in a consequential amendment of the unit of quantity to "dozens" instead of "pieces/pairs". The outcome was that, in the amended S/Bs, the value of the goods, instead of reducing to 1/12th, remained unaltered, i.e. 12 times their actual value certified as per examination report on the reverse of Invoice, and the quantity in which no amendment was sought was increased by 12 times. It must be emphasized, however, that the parties b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following circumstances, to urge that the said statement could not be relied upon: (a) The statement of Mr Mufazzal, recorded on 15.7.03, was retracted, by him, at the first available opportunity, on 16.7.03, before the learned Additional Chief Metropolitan Magistrate [hereinafter referred to as "the learned ACMM"], on which occasion he also complained of having been subjected to gross physical assault by the DRI officers, so as to extract, from him, a statement implicating one Mr. Rajeev Agarwal. (b) The learned ACMM himself examined Mr Mufazzal, and verified his medical report, both of which bore out the assertion, of Mr Mufazzal, of his having been subjected to assault. (c) While granting bail to Mr Mufazzal, the learned ACMM, in his order recorded, the following observations: "4. From the genuine efforts made by advocate for accused immediately after his being picked up and the blunt reply given by advocate for DRI that on the basis of information given by DRI, it seems that they are not acting as per the procedure laid down, for the purpose of interrogation and investigation but they are doing their investigation as per their own way by detaining the persons wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods, and for rectifying the discrepancy request for amending the Shipping Bill was made by him on 14.5.03, and after taking necessary approval from the concerned Dy. Commissioner of Customs, Nhava Sheva the letters were handed over to the CMC for amending the Unit Rate from per piece to per Dozen. (c) Vide order dated 04-06-03the said Criminal Writ petition was rejected. (d) SLP 2463/2003 against order dated 4-06-03 was dismissed in view of decision in Poolpandi Vs Superintendent, Central Excise-1992(60) ELT24(SC).. (e) Mr Unnikrishnan, ultimately surrendered, on 28.7.03, before the learned Additional Chief Metropolitan Magistrate, and was taken into custody. (f) On 29.7.03, the DRI made an application before the learned ACMM, for the recording of Mr Unnikrishan's statement in the jail premises. Permission, as sought for, was immediately granted, by the learned ACMM. (g) Though officers of DRI pursuant to the said permission visited the jail premises to record his statement, they chose not to record his voluntary statement. (h) Instead of recording the same in judicial custody, the DRI filed another application before the learned ACMM, contending that Mr Unn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unnikrishan passed severe strictures on DRI officers. It was recorded in his Bail order thus: "Before passing order, the report of medical officer of J.J. hospital and that of C.M.O. of Jail, dated 08.08.2003 are kept before me. On examination of the said accused in J.J. Hospital on 07.08.2003 in the evening, it is mentioned in the medical certificate by the concerned doctor that accused had sustained four injuries and they are due to hard and blunt objects i.e. kicks, punches and wooden stick (i.e. physical assault) and age of injury is shown more than 48 hours. This means that accused was assaulted on or before 6 p.m. of 05.08.2003. Admittedly, accused was summoned at about 02.30 p.m. on 05.08.2003 as per the story of the DRI and since than he was in custody of DRI. So for these reasons case would lie u/s 3 of chapter 1 of Criminal Manual." (p) After his release on bail, Mr Unnikrishnan was admitted in the MGM New Bombay Hospital, which further examined him and confirmed that he had suffered interalia fracture of the anterior portion of the 10th rib of his left side. (q) The above facts, as well as his retraction were reiterated by Mr Unnikrishnan, vide detailed affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, where Shri Sudhir Naik gave him Rs. 5000/- with which account of the firm was opened. (b) Sudhir Naik took signatures on 15 blank letterhead, and that he has not signed the application for amendment. (v) Milind Shreedhar Surve, the brother of Abhijit Surve, proprietor of Tamarind, interalia stated that (a) the letter dated 12.5.03 of Tamarind for permission for warehouse stuffing was not signed by him, Abhijit Surve, or anyone he recognized, and (b) the appellant had sent him a sample of the export shoe, which was worth only Rs 100 and was available on the Crawford Market footpath. (v) Mrs S.S.Das stated that (a) she had given order "to check declared value fair" for the 18 S/Bs in issue, (b) as the value appeared to be on the higher side, she had ordered to check the value with respect to the quality of the goods, (c) so far as she remembered, at the time of assessment, the invoice value declared was per pc, (d) so far as she remembered, the S/Bs were for dock stuffed goods, (e) there was no examination report on the invoice, and (f) Mr Unnikrishnan told her that the values were higher because the chain wheels were for Mercedes cars and the shoes were of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho brought him the amendment letters said that they pertained to the appellant and he should carry out the amendments, (b) he carried out the amendments, (c) the checklists were generated at ULA, CFS, and were in accordance with the annexures and invoice copies filed by Mr Unnikrishnan on 12.5.03, (d) as per the details in the annexures, he entered the data in the EDI system, (e) on completion thereof, the checklist was generated, (f) after Mr Unnikrishnan had approved the checklists by signing them, the command of submission of S/Bs in the EDI system was issued by him, (g) LEO is given only thereafter, (h) printout of the S/Bs can be taken only after LEO, (i) the system showed the LEO as also having been cancelled, (j) the unit for quantity in all the check lists was "pcs", (k) the rate was per pc in all the check lists, (l) in the amendment letters, change was sought from pcs to dozen, (m) as a result, the unit of quantity changed from pc to dozen, (n) CHAs were well aware that amendment could only be so effected, and (o) the amendment was not effected in the DEPB part of the S/Bs as there was no request therefore in the letters for amendment. (p) H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made by them before various authorities such as Central Excise and DGFT regarding various addresses and businesses were found to be fictitious and non-existing. All expenses for creation of these firms were borne by Mr. Agarwal, who lured them by promising part of sale proceeds of the DEPB licenses. xvii. Ramesh Ashar stated inter alia that- (a) On being asked by Bakul Parekh he suggested name of Unnikrishnan and gave his visiting card. (b) Through his firm Vinnytex Corporation, he traded in cotton T-shirts, blended shirts and ladies dresses. (c) Cheques received from Rushi were returned by his bank, M/s UCO Bank with remarks stop payment, (d) Goods were sent on challans of Vinnytex Corporation (d) Cheques exceeding Rs 25 Lacs were not for the seized T-shirts but for order of other Maxis and Shirts agreed to be supplied to Rushi. (b) Mr. Bakul Parekh has given fabricated story. (c) He had supplied interalia 183 cartons of T-shirts to Bakul Parekh, out of which 160 were being exported by Rushi. xviii. Rajeev Agarwal totally dissociated himself from the exports by all four exporters in all his statements. He inter alia stated that- (a) The mobile no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unnikrishnan. The authority letters produced by him appeared, therefore, to be fabricated. (f) The contention that the Check List generated on 13.5.03, showed the rate in "per piece" owing to peculiarity of the EDI system, was unfounded as the check list tallied with the invoices, which also showed the rate "per piece" basis. When the high declared value of the goods came to the notice of Mrs. Das, she questioned Mr Unnikrishnan, who stated that the engineering items were parts of Toyota/Mercedes cars and that the shoes were to be branded by the buyer. However, Mrs Das nevertheless ordered verification of the declared value. The veracity of the declared value was also doubted by Mr Natekal. (g) Despite the above, neither Mr Sandhu nor Mr Tomar took notice of the high value of the goods, and granted LEO in respect thereof. (h) Later, on finding that the fraud was being detected, a hasty attempt was made to have the S/Bs amended. However, owing to the haste in which the exercise was carried out, the quantity was also changed from pieces to dozens and there was no time to effect the amendments in the PMV, total FOB Value and DEPB benefits. (i) Later, to lend a veneer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was dismissed as withdrawn. However, Sanjay Singh of M/s Shuttle Trans in rejoinder affidavit filed by him has stated that he was slapped on several occasions during his interrogation recording of statements and his staff was also manhandled by the officers. (iii) On 4.11.03, a Show Cause Notice was issued, by the DRI, under Section 110(2) of the Act, proposing extension, of the time fixed for issuing the substantive Show Cause Notice in the case, by 6 months, omitting, conspicuously, to mention, therein, the time fixed by the Hon'ble High Court vide its order dated 11.8.03 supra. (iv) Vide order dated 10.11.03, the Commissioner extended the time, for issuing Show Cause Notice in the matter, till 31.12.03. (v) On 17.12.03, another Show Cause Notice, proposing further extension of time under Section 110(2) of the Act, till 13.5.04, was issued. In this Show Cause Notice, too, there is no mention of the time period fixed by the Hon'ble High Court. (vi) This Show Cause Notice was, however, followed by a corrigendum thereto, dated 19.12.03, inserting the following paragraph, after para 20 of the Show Cause Notice dated 17.12.03: "20(a) As such an application dated 09-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated and penalties have been imposed on Rajeev Agarwal, C R Unnikrishnan, Bakul Parekh, Vinod Shukla, Nayan Upadhyay,. Mufazzal Hakim, Ramesh Ashar, Sudhir Naik and Shuttle Trans Shipping Co. Pvt Ltd. However, the Commissioner has exonerated the departmental officers, Mr Sandhu Mr Tomar, and employee of M/s A.S. Vasan Sons, Shri Bhimaji Indore, of any complicity in the matter. The allegation of Shri Unnikrishnan and Rajeev Agarwal having conspired with Mr Sandhu and Mr Tomar to fabricate a second set of invoices, containing the rate in "per doz", after the seizure of the goods, has also been dropped for want of any corroborative material. Rather, it has been found, by the Commissioner, that the entire attempt to avail irregular DEPB was the brainwave of Mr Unnikrishnan, Mr Mufazzal and Mr Rajeev Agarwal, who acted in concert, and that it was the alertness of Mr Sandhu and Mr Tomar, which led to the detection of the fraud. 13. The above order of the Commissioner has, as has already been noted above, assailed, before us, both by the appellants as well as by the Revenue. We may now note the submissions made before us, on this score. 14. Appearing for Mr C R Unnikri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfaction, by H.S.Sandhu, and could not be discarded in the absence of credible and acceptable evidence. (vi) Though it is mandatory to maintain register of documents handled, the records of M/s A.R. Michael, CHA firm of Mr. Marshall Machado, which would have shown the entries in accordance with the Invoice bearing examination report in respect of Tamarind are being suppressed. (vii) The authority of Mr Unnikrishnan to represent the exporters, therefore, ceased to be of any relevance, as there was no material justifying his being penalized under Section 114 of the Act. However, it has been emphasized that- a) Vinod Shukla, of Lalit, acknowledged, in his petition filed in the Hon'ble Bombay High Court, that Mr Unnikrishnan was authorized to represent him, b) Sudhir Mehta, of Hex, also acknowledged the authority of Mr Unnikrishnan to represent him, c) Tamarind also admitted knowledge of the fact that Mr Unnikrishnan was managing their export consignments, but, allegedly, by taking their signatures on blank documents, etc. and d) Bakul Parekh, of Rushi, disowned authorizing Mr Unnikrishnan to represent him, but had actually paid for the consignments exported by Mr U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or rebuttal. (vi) Mr Agarwal approached the Hon'ble High Court for anticipatory bail. In its counter-affidavit filed thereto, the DRI again misstated that Mr Agarwal was willfully avoiding appearing before it to give his statement, and that he did not attend even on 4.8.03. (vii) Per contra, another affidavit, dated 23.9.03, was later filed, by the DRI, before the Hon'ble High Court, averring, again on oath, that Mr Agarwal "had been appearing before DRI, even without being summoned". (viii) As against this, in the Show Cause Notice, dated 4.11.03, which forms the genesis of the present case, it was alleged that Mr Agarwal was "yet to appear before DRI". In fact, even on 4.11.03, Mr Agarwal appeared before the DRI, and his statement was recorded. (ix) Barring Mr Unnikrishnan and Mr Mufazzal, Mr. Agarwal was implicated only by Mr Vinod Shukla of Lalit and Mr Sudhir Mehta of Hex. Their statements were, however, retracted subsequently. (x) Mr Kantawala has drawn our attention to the finding, of the Commissioner that his client was not making himself available for investigation before the DRI and has submitted that, in view of the above factual situation, this finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h merely cited the mobile number 9821885498 as the number of Rajeev Agarwal, whom he had named in his earlier statements, too, could not, therefore, further the case of the Department. Mr Hakim had not produced any receipt for the sum of Rs 35.6 lakhs stated to have been lent, by him, to Mr Agarwal. (e) Sanjay Singh referred, not to Rajeev Agarwal, but to Ramesh Agarwal. The two were being sought to be equated merely on the basis of Mufazzal Hakim's statement, which was itself unworthy of credence. (f) Manoharlal Bhatia's statement did not implicate Mr Agarwal. All that it said was that, from the discussions between Mr Unnikrishnan and Mr Bhima, Mr Bhatia had gleaned that the goods belonged to Mr Agarwal. At the worst, this was hearsay, and was entirely inadmissible in evidence. Neither did it contain any particulars of the goods to which it referred. (g) Prakash Bhatia, too, did not make any reference to the goods in issue in the present case. (h) Mr Hilary Miranda, too, merely "identified" Mr Agarwal during a "confrontation" between the two, arranged by the DRI. There was no legal sanction for any such "confrontation", or any evidence obtained therein. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, main thrust was placed on the coercive methods used by DRI and the strictures passed by the Ld. ACMM, while granting him bail. It was also pointed out before us that he was forced to implicate Rajeev Agarwal and Unnikrishnan. There was no material showing that he financed the exports, or helped in their sourcing, and there was no basis to penalize him. 18. On behalf of Mr. Ramesh Ashar it was interalia submitted that the impugned order places reliance on order of Ld. ACMM convicting him for non-compliance of summons, however the same is silent on the fact that the said order was set aside by the Hon'ble Session's Court and it was found that summons were not even served upon him. He was not liable to any penalty. He sold T-shirts to Bakul Parekh, however after seizure of the goods Mr. Bakul stopped the payment of the cheques on false ground that the same were misplaced. DEPB benefit would have been availed by Rushi, and not by him, that too, after receipt of remittance from abroad in bank account of Rushi. Our attention was drawn towards a summons dated 17-12-2003 issued to him, which was prominently marked by the Senior Intelligence Officer as follows- "Statement not recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance cannot be placed on observations of Ld. ACMM, as the same were in regard to bail applications. He admitted that contemporaneous value of the export goods from EDI data was not ascertained. He submitted that the case was required to be proved not by mathematical precision but to a degree of probability that a prudent man may believe the same. 23. None represented on behalf of Bhimaji Indore. 24. Mr. Tomar appeared in person. He invited our attention to the provisions in the Exim Policy/Handbook stipulating that no authority shall stop the export consignment and shall release the same by taking suitable undertaking. He also showed that he was not required to examine the consignment, and that that statement of S.S. Das can not be believed, because she refers to shipping bills for dock stuffing procedure, whereas the concerned shipping bills were for factory stuffing procedure. He supported the findings of Ld. Commissioner, which exonerated him. 25. Ld. Counsel appearing on behalf of Mr. Sandhu also supported the findings of the Ld. Commissioner qua Mr. Sandhu. 26. In the Appeals filed by the Appellants, no cross-objections were filed by the Revenue. In the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been sought from the Hon'ble High Court. The order of the Commissioner has, admittedly, been passed after the expiry of 6 months, even counted from the date of the order of the Hon'ble Supreme Court. It is, therefore, ex facie, barred by time and is liable to be set aside on this score, itself. 29. As detailed submissions have been advanced, without prejudice to the above preliminary submission, on merits, by both sides, we deem it appropriate to examine the issue on merits as well. 30. Certain prefatory findings must, in our view, precede an examination of the rival contentions. 31. As has been noticed from the recital of facts herein above, there is one sharp point of difference, between the allegations in the Show Cause Notice issued in the present case, and the findings of the Commissioner as contained in the impugned Order-in-Original. This difference, in our view, is pivotal to a decision on the issues in controversy. 32. The Show Cause Notice alleges that the appellant had, with it, only one set of invoices, showing the rate in "per piece" or "per pair", which it attempted to pass all through. According to the Show Cause Notice, (i) Mrs Das noticed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DEPB fraud was aborted - nipped in the bud, as it were - by Mr Sandhu and Mr Tomar. 34. We may, even at this juncture, deal with the grievance of the Revenue, regarding the exoneration of Mr Sandhu and Mr Tomar. Though it is alleged that two sets of invoices and Annexure-"A" were prepared by Unnikrishnan on his office computer, no evidence of generation of two sets of invoices could be produced despite seizure of CPUs of office computers of Mr. Unnikrishnan vide panchnama dated 14-05-03. Though the Ld. DR sought to buttress his stand by inviting our attention to the fact that Mr. Tomar, had not made any entry of the discrepancy or regarding undertaking for the amendment, in the EDI system. We find that having prominently marked the print out of the DEPB copy of the shipping bills in red ink to reduce the DEPB claim to the extent of value as per examination report, he infact discharged his duties as expected from him in accordance with Public Notice 65 (supra). Unless the shipping bill was amended, the change of value could not have reflected on the printout of shipping bill, even if any remark was entered in the EDI system in this regard. Except for reiterating the allegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept of "corroboration". In its recent decision in Sita Ram Sao v State of Rajasthan , IX (2007) SLT 525, the Hon'ble Supreme Court pithily encapsulated the idea of "corroborative" evidence, in the following words: '22. The word 'corroboration' means not mere evidence tending to confirm other evidence. In DPP v. Hester (1972) 3 All ER 1056, Lord Morris said : "The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible ......" ' There can be, therefore, no "corroboration" of evidence, which is itself unworthy of credence. Applying this principle to the present case, once the statement of Mr Unnikrishnan was found to be unworthy of credence, while deciding the case in respect of Mr Sandhu and Mr Tomar, the Commissioner, in our view, grossly erred in relying on the very same statement on the ground that it stood "corroborated" by other statements, etc. The above extracted findings, as contained in para 2.26 of the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly adjourned. (e) In the same application, the DRI studiedly concealed, from the Hon'ble High Court, the fact that it had challenged the earlier order, dated 4.8.03, before the Hon'ble Supreme Court, and that the said SLP was pending. (f) The order, dated 17.7.03, passed by the learned ACMM, clearly found that third degree methods had been employed to extract, from Mr Mufazzal Hakim, his statement on 15.7.03. The following words, in the said order, speak for themselves: "From the genuine efforts made by advocate for accused immediately after his being picked up and the blunt reply given by advocate for DRI that on the basis of information given by DRI, it seems that they are not acting as per the procedure laid down for the purpose of interrogation and investigation but they are doing their investigation as per their own way by detaining the persons wrongfully without intimating their family members or advocate at-least about whereabouts of the accused and doing atrocities just, as police in some cases do where police are commented by the Supreme Court and were given directions as to how police have to act in case of arrest with accused persons. It is not expected from DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 7.8.03. (i) We were also piqued - though not, perhaps, unexpectedly - to find that, on the body of the summons, dated 17-12-03, issued to Ramesh Ashar in the present case, the DRI officers have, in an uncharacteristic display of frankness, recorded that they were unwilling to record his statement as he produced order of anticipatory bail. We fail to understand how an anticipatory bail order could act as an "umbrella" against the recording of a statement under Section 108 of the Act. Quite obviously, the only inference is that, while the anticipatory bail order was in force, it would not be possible to subject Mr Ashar to the duress, which as per the DRI, is a sine qua non for extracting a truthful statement. (j) The apparent possibility that Asif Ahmed, the staff of Shuttle Trans, was also subjected to third degree treatment during the recording of his statement, cannot be ruled out mainly in view of the pleadings of Shuttle Trans (in its rejoinder in Writ Petition 6006 of 2003), before the Hon'ble Bombay High Court, which are also placed on record before us, and wherein it is stated on affirmation that Sanjay Singh of Shuttle Trans was slapped on several occasions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants, to one extent or another, is that of an attempt to avail irregular DEPB credit. Though some discrepancy is quantity is also alleged [with which we would deal later], the main case of the Revenue is one of alleged overvaluation of the export goods by the exporters. The Commissioner has found that Mr Unnikrishnan had, with him, two sets of invoices, one showing the rate on "per piece/per pair" basis and the other on "per dozen" basis, and that, at the time of generation of the Check List, the former was presented, so as to obtain DEPB equivalent to 12 times the actual entitlement. Per contra, the appellants, inter alia, submitted that the fact "per piece" invoice has remained a nebulous entity, which has never revealed itself in the proceedings, though, admittedly, the invoices submitted with the Annexure 'A' declaration are in the possession of the Department. The actual fact, the appellants would assert, is that there was only one set of invoices, which showed the rate on "per dozen" basis, and the reason for the Check List showing the rate in "per piece", instead of "pieces" or "pairs", was because of the peculiarity of the EDI system, which did not recognize different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , secreting the "per dozen" invoice, as it were, in his pocket, for production at a later stage. However, neither Annexure 'A', as submitted by Mr Unnikrishnan, nor the "per piece" invoice allegedly furnished therewith, are either relied upon in the Show Cause Notice, or even produced before us for our perusal. Our attention has, in this connection, been invited to the statement, dated 22.8.03, of Mr Unnikrishnan, wherein he has stated that he left, as was the practice, the Annexure 'A' at the CMC ULA counter, and we see no reason to disbelieve this statement. It is practically axiomatic that, if primary evidence, though available, is not produced, secondary evidence cannot be relied upon. Per sequitur, if primary evidence is suppressed, secondary evidence to the contrary, too, cannot be pressed into service. The Revenue has confessed, before us, its inability to produce the Annexure 'A' filed by Mr Unnikrishnan, for the exporters, or the invoices filed therewith, which would immediately disclose whether they showed the rate on "per piece" or "per dozen" basis. In view of this, we do not feel persuaded to accept the stand of the Revenue merely on the basis of oral evidence re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depose regarding contents of documents, is, if at all, very slight. The circumstances of the case, and the documents produced before us, as has already been found hereinabove, do nothing to discredit the appellants' version of the events. However, we have, in deference to the submissions of the learned DR, gone through the statements relied upon by him and, regarding these statements, we find as under: (i) Marshall Machado was the CHA who handed the export consignment of Tamarind. Under the Custom House Agents' Licensing Regulations, 1984, he was obliged to maintain a register containing the record of documents handled. Neither the said register, nor the invoice recovered from him, are relied upon by the Revenue, nor are they produced before us for our perusal. A glance at the said documents would have revealed whether the rate therein was in "per pair" or "per dozen". In the absence of such primary evidence, we are not persuaded to accord any credence to the oral evidence of Marshall Machado regarding the contents of the said documents. (ii) Mr Miranda was the Data Entry Operator who prepared the Check List on 12.5.03 as well as carried out the amendment on 14.5.03. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainer, as mentioned therein, with the S/Bs, before allowing entry into the port. The learned DR has also drawn our attention to the subsequent statement, dated 27.8.03, of Mr Gaur. We find, however, stark dissonance between the two statements, inasmuch as, in the earlier statement dated 18.6.03, Mr Gaur talks about the endorsement of Mr Sandhu which he, to his satisfaction, found to be present, later, on the reverse of the invoice (a fact which is not controverted even in his subsequent statement dated 27.8.03) and, in his later statement dated 27.8.03, he was shown the exporters' copy of the S/Bs. There is nothing to indicate that the statement of 18.6.03 related to the exporters' copy of the S/Bs, or that the exporters' copy was shown to him on the night between 13 and 14.5.03 either. The endorsement of Mr Sandhu is not present on the exchange control copy or the DEPB copy of the S/B, available on record. It is significant that Mr Gaur has carefully omitted from making any admission, in his statement dated 27.8.03, that the copies of the S/Bs shown to him that day were those shown to him on the night between 13.5.03 and 14.5.03, or even that they were the S/Bs to which he ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard, in view of our findings, hereinabove, that there is no credible evidence, in the entire case, to suggest the involvement of Mr Rajeev Agarwal in any manner. It is an admitted position that neither any incriminating material was recovered in search of his premises, nor his statements were inculpatory. Nothing incriminating, evidencing his involvement with any of the exporters, was recovered even from the premises of Unnikrishnan, Vinod Shukla, Sudhir Mehta, Rushi or Tamarind. Neither any evidence of his financing any of the subject exports was recovered, nor any evidence of his being involved in any procurement of the subject export goods, was recovered. No material evidence of his being involved in opening fictitious firms was recovered. In the facts and circumstances of the case, we therefore hold that we do not find any credible evidence to connect him with any of the allegations leveled against him. 44. The allegations of one unauthorized amendment, as leveled in the addendum, also do not inspire confidence. It is undisputed that Mr. Fernandes, the DC, authorized request of amendment for all 18 S/Bs. It is also undisputed that all 4 letters for amendment, seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exported by Tamarind. (i) in the case of Hex, the declared PMV, works out to Rs 125, whereas the ascertained PMV is Rs 140, per piece, (ii) in the case of Lalit, the declared PMV works out to Rs 41.67, whereas the ascertained PMV is Rs 42 per piece, (iii) in the case of Rushi, the declared PMV works out to Rs 41.67, whereas the ascertained PMV is Rs 40 per piece. In the case of Tamarind, there is a considerable difference between the declared PMV (of Rs 200 per pair) and the ascertained PMV of Rs 75 per pair, but this difference cannot influence our reasoning, as the ascertained PMV was on the basis of the communications from Phoenix, who have disowned the shoes and given a mere approximate figure of 50 to 75 per pair of shoes, of which, too, the Revenue has taken the mean, unsupported by any corroborative material. The letters of Phoenix cannot, even on a bare reading thereof, inspire confidence as a basis for alleging overvaluation of the shoes sought to be exported by Tamarind. We may reiterate, here, that Mr Sandhu had also carried out physical verification of the goods, and found their value to be correct. Moreover, the seizure panchnama dated 20-05-03, itself shows ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
