9911796707
TMI Blog2023 (5) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... facts leading to the present case are that the specific intelligence was gathered by the officers of Directorate of Revenue Intelligence, Delhi Zonal Unit that non-existent firm M/s Anand Enterprises, having Import Export Code (IEC) No. 0515055999 had filed 52 shipping bills for export of Ready Made Garments (RMG) at Inland Container Depot, Tughlakhabad, New Delhi to various countries under duty drawback scheme and an amount of Rs. 1,88,23,316/- was sanctioned to the firm towards duty drawback. Acting on the said intelligence, DRI requested to withhold the duty drawback pending to any to M/s Anand Enterprises. 3. On further investigation, it appeared that the dubious plan hatched by Shri Anand Sharma, (PAN No. FXNPS427E) proprietor of bogu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared FOB value Rs. 21,31,04,795/- (Rupees Twenty One Crore Thirty One Lakh Four Thousand Seven Hundred Ninety Five Only) which were exported with an intent to avail undue export Incentive under drawback scheme should not be confiscated under Section 113(1) of the Customs Act, 1962 read with Section 50 of the Customs Act, 1962 and Rule 11 and 14(2) of the Foreign Trade (Regulation) Rules, 1993 and since the said goods are not available for confiscation, fine in lieu of confiscation should not be imposed on the aforesaid goods under Section 125 of the Customs Act, 1962; (b) The drawback of Rs. 1,88,23,316/- (Rupees One Crore Eighty Eight Lakh Twenty Three Thousand Three Hundred Sixteen Only) already availed of by M/s Anand Enterp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e against M/s Anand Enterprises as well as the other two parties, i.e. M/s KVS Cargo and M/s Him Logistics. 8. Being aggrieved, separate appeals were filed by the two appellants before the Commissioner (Appeals), however, both the appeals were rejected and the penalty imposed was confirmed vide order dated 29.09.2022. Hence two separate appeals have been filed by M/s KVS Cargo & M/s Him Logistics Pvt Ltd. against the order of the Commissioner (Appeals) before this Tribunal. 9. I have heard learned counsels representing the two appellants, namely, KVS Cargo and also M/s Him Logistics and also the authorised representative for the Revenue. 10. The allegations against the two appellants is for violation of the provisions of regulation 11 (n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an important and responsible role to play while providing their services. 13. The evidence collected during investigation clearly shows that it was a case of well planned conspiracy by the exporter, to defraud the Government by wrongly taking the export benefits by creating a bogus firm. The manner in which he indulged in fraudulently fabricating the documents and on the basis thereof he managed to obtain bogus PAN card, IEC code from DGFT and on that basis he opened a Bank Account. Neither the Income Tax Department verified the genuineness of the election voter card before issuing the PAN card nor DGFT while issuing the IEC code raised any objections on the authenticity of the documents. Even the Bank officials before opening the bank a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court of Delhi, I have no hesitation in arriving at a conclusion that in the facts of the present case no violation can be attributed on the appellant being a Custom House Agent. The allegations that the appellant did not verify the KYC documents of M/s Anand Enterprises which was a bogus firm created with forged documents and that he abetted the export of readymade garments are unsustainable in as much as the allegations of forging the documents is solely on Anand Sharma and no connivance of the appellant in that regard has been pointed out by the Department. The statement of Shri Bal Kishan Bhalla Chief Manager, Punjab National Bank under section 108 of Customs Act, wherein he specifically stated that Anand Sharma, the proprietor of M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, I do not find that any allegations of abetment are substantiated as it is not the case of the department that they were aware of the fraud or were beneficiary of the fraud. As pointed out above, the fraud played by Anand Sharma was not even ascertained even by public officials then how is it possible for a non official entity to identity the veracity of the documents. M/s Him Logistics was merely a facilitator in forwarding Anand Sharma to KVS Cargo, hence they cannot be roped in for any violation of the provisions of CBLR and therefore the penalty imposed on M/s Him Logistics by the impugned order is untenable. 17. During the hearing of the appeal, both the appellants have referred to the earlier decisions in their own matters. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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