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TMI Blog2009 (7) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... h Sh. Rohit Batra as proprietor, M/s. Sandeep Exports (herein referred to as M/s. Sandeep) with Smt. Rajinder Kaur Randhawa as proprietor and M/s. B.R. Enterprises, Jalandhar (herein referred to as M/s. B.R.) with Shri Bakshi Ram as proprietor, lying in various godowns of Central Warehousing Corpn. at ICD, Patparganj, Delhi, were examined on 28-9-02. All these consignments were of Hand Tools and had been brought inside the customs area before the filing of shipping bills on the basis of carting orders issued by the concerned Dy. Commissioner (Customs). On 28-9-02, the shipping bills were found to have been filed only in respect of the consignments of M/s. Classic, M/s. Ambey and M/s. Sandeep. On examination of the export consignments, which were awaiting customs clearance, in all the cases, the quantity and value of the goods was found to be much less than that mentioned in the respective invoices and packing lists on the basis of which the carting order for bringing the goods inside the customs area had been issued. In some cases even the description of the goods was different. All these exports were under DEPB or draw back claim. In case of M/s. Ambey and M/s. Classic, while the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods so as to claim higher draw-back/DEPB benefit. Initially the goods alongwith invoices and packing lists used to be brought inside the Customs area by obtaining the carting orders from Dy. Commissioner (Customs), but thereafter the shipping bills were being filed and by forging signatures of the various customs officers and putting false seals, clearance of the export consignments out of custom charge were being arranged without any customs examination. It was found that since this type of fraud would be difficult if the shipping bills are filed through EDI, the shipping bills were being filed manually. 1.5 Since the export consignments of M/s. Ambey, M/s. Classic, M/s. Geetika, M/s. Sandeep and M/s. B.R. had been placed under seizure in Sept., 2002 and SCN could not be issued for confiscation of the seized goods within the period stipulated in Section 110(2) of the Customs Act, 1962, in accordance with the provisions of Section 110(2) a show cause notice dated 21-3-03 was issued for extending the period for issue of the SCN. The Commissioner vide five orders dated 24-4-03, 25-4-03, 25-4-03, 24-4-03 and 25-4-03 issued under Section 110(2) extended the period of issue of SCN in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal's judgments in cases of - (a) Kabul Textile v. CCE - 2004 (174) E.L.T. 470. (b) Jacson Thavera v. Collector of Customs - 1987 (27) E.L.T. 121 (c) Dynacast Industries v. Collector of Customs - 1999 (113) E.L.T. 524 (2) The penalty under Section 114(iii) could be imposed only if the goods had been exported under drawback scheme. In case of M/s. B.R., shipping bills had not been filed and in the two cases-i.e. M/s. Classic and M/s. Ambey, the shipping bills were under DEPB, not under draw-back. Hence Section 114(iii) is not attracted. (3) Hon'ble Supreme Court in case of RIB Tapes (India) Pvt. Ltd. v. UOI - 1986 (26) E.L.T. 193 has held that difference in value could not be said to be "difference in material particulars" within the meaning of the language of Section 111(m) of Customs Act, 1962. In this case, during the relevant period i.e. during Sept., 2002, the word "value" was not there in Section 113(i) and it was inserted w.e.f. 14-5-03 only. So, on the ground of misdeclaration of value, Section 113(i) cannot be invoked. 2.1.1 Shri Piyush Kumar, Advocate, representing Shri Praveen Sharma and Shri Deepak Sharma made the following submissions : (1) The allegation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Counsel representing Shri Om Prakash Jain, Shri Gaurav Gupta and Shri Jitender Kumar Chatwa, repeating the submissions made on behalf of other Appellants, emphasized that there was no misdeclaration and hence the provisions of Sections 113(i) and 114(iii) are not applicable. 2.2 Shri Vijay Kumar, the learned Departmental Representative emphasizing that in all these cases, the goods had been brought into the customs area on the basis of invoices and packing lists, wherein the quantity and value of the goods had been grossly inflated, only with intention to export the same by misdeclaring the quantity and value, in order to claim higher - DEPB/Drawback, made the following submissions. (1) The details regarding the weight and value of the goods in invoices and packing lists on the basis of which the entry of the goods for exports was allowed by the Customs authorities, were misdeclared. In the case of M/s. B.R. Enterprises, the description of goods as declared was "Cobalt Bearing Tools Bit", while the goods were found to be "Ring Spanner Set without Cobalt, a much cheaper item. (2) The Appellants admitted in their statements during investigation that the details regarding the we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the Hon'ble Supreme Court is squarely applicable to the facts of this case. (4) In this case the misdeclaration was done by five different firms but the CHA is common in all the cases. The adjudicating authority in para 77(f) of the impugned order-in-original has given clear findings that the CHA and their persons In earlier similar exports, had forged signature of Customs officers and affixed the forged stamps of the Customs officers on export documents. Therefore, this case is nothing but attempt to export by grossly misdeclaring the quantity and value of the goods in order to claim high DEPB benefit and hence the provisions of Sections 113 & 114 are attracted. 3. We have carefully considered the submissions from both the sides and perused the records. Out of the five exporters involved in this case, only three - M/s. Ambey, M/s. Classic and M/s. B.R. have filed appeal against the impugned order along with their partners/proprietor. The other two exporters - M/s. Geetika and M/s. Sandeep have not come in appeal. In all these cases, the export consignments which were to be exported under DEPB claim or drawback claim had been brought on the basis of carting order/issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of this, no cognizance can be taken of the Shipping Bills filed by M/s. Classic and M/s. Ambey. The question now arises as to whether on the basis of huge difference between the quantity and value as mentioned in the invoice and packing list originally presented to the Customs while obtaining carting orders and the quantity, value and description as actually found during examination, it can be said as to whether the goods were being attempted to be exported by misdeclaring the quantity, description and value and thereby attracting the provisions of Sections 113 & 114 of the Customs Act, 1962. In this regard, we find that Shri Jitender Kumar Chatwal, an associate of Shri Jai Singh, through whom these consignments were to be cleared, in his statement, dated 30-10-02 and 31-10-02 has stated that the actual intention of bringing the goods prior to the filing of shipping bills, under the cover of invoices/packing lists mentioning highly inflated the quantity and value, was to subsequently file the Shipping Bill on the basis of such invoices and get the goods cleared without Customs examination by forging the signature of the Customs Officers on the Shipping Bill and putting fake sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated as an authorized representative of M/s. Jindal International, Nagore and Shri S.K. Pitti, proprietor of M/s. Jindal International; that M/s. Jindal International was established in the year 1966; that he was looking after the work of M/s. Jindal International from 1997 to 2002; that from Dec., 2000 to Jan., 2002 he also worked in M/s. Nibras Al Shj Steel & Building Material Trading Est. P.O. 2573, Sharjah as shop incharge; that M/s. Jindal International are engaged in manufacture of various types of Pliers which they get manufactured with the help local job workers; that M/s. Jindal International supplies their goods to various firms who in turn usually export the same; that he used to frequently came to India during the period (Dec., 2000 to Jan, 2002) when he was employed with M/s. Nibras Al Shj Steel & Building Material, Sharjah and used to help his uncle Shri S.K. Pitti in his business; that in the course of trading he came in contact with Shri Ashok Kumar alias Lucky, Shri Gurinder Singh proprietor of M/s. H.S. overseas and M/s. Millennium Exports, Shri O.P. Jain, proprietor of M/s. Jaina International, Shri S.K.Chopra, proprietor of M/s. Laxmi Steel Forgings and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nibras, Sharjah never used to submit the invoice showing the declared value etc. received through exporters in India to Dubai Customs as due to ten times more value the importer would have been required to pay ten times more duties so that importers i.e. M/s. Nibras, Sharjah either used to submit the other copy of the invoice received through such exporters showing actual value or some times M/s. Nibras, Sharjah themselves used to prepare such invoices; that there are sufficient proof/evidences with the Dubai Customs of the fraud committed by said Shri O.P. Jain, Shri Ashok Kumar, Shri Gurinder Singh and Shri S.K. Chopra and which can be obtained by overseas inquiries; that Shri O.P. Jain influenced his uncle Shri S.K. Pitti to send export consignment of Hand Tools in his firms name to Dubai; that Shri O.P. Jain told him that the tools would be manufactured in his firm M/s. Jain International and he (O.P. Jain) would sent the consignment directly to Shri Jai Singh at Delhi who would prepare invoice etc. in his (Shri S.K. Pitti's) firms name and export the consignment to M/s. Nibras, Sharjah; that the Hawala transactions relating to the said consignments would also be managed by h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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