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TMI Blog2024 (3) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... mens' t-shirts', entered for export against shipping bill no. 2504032/29.12.03, no. 2504033/29.12.03, no. 2504034/29.12.03 and no. 2504036/29.12.03, and another comprising 43,200 nos. 'ladies dresses', entered for export no. 2517068/03.01.04, no. 2517261/03.01.04, no. 2517265/03.01.04 and no. 2517270/03.01.04, that had been granted 'let export order' upon completion of formalities under Customs Act, 1962 were put on hold and returned to the container freight station for re-examination which established the said goods, claimed to be valued at US$ 8.50 and US$ 6.50 apiece respectively, to be of such poor quality as to be valued at a mere Rs. 9,28,900 instead of value of Rs. 2,94,33,520, and supported by ARE-1 with value of Rs. 2,66,54,400 purporting to be production of M/s Sri Shyam Overseas, in support of claim for 'authorization' exempting duties of customs to the extent of Rs. 41,21,000 under the 'duty entitlement pass book (DEPB)' scheme in the Foreign Trade Policy (FTP) on future imports. Additionally, only 21,600 pieces of 't shirts' and 33,300 pieces of 'ladies dresses' were found in the two containers. 2. The adjudicating authority has held that '3.5 From the facts as unfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies tops (rags/chindi) from Shri, Aslam of Kurla for Rs. 1,50,000/-. Further, an amount of Rs. 11 lakhs along with the documents such as invoice, ARE-Is, etc. prepared by Shri. Rajiv Mehta, were handed over to Shri. Nitin Pherwani, who along with Shri. Pankaj Rawal handed them over to Shri. Pravin Joshi for clearing the consignment through customs. Thus it is clear that Shri. Rajiv Mehta, in order to earn huge profit by deceiving the Government exchequer, knowingly attempted fraudulent export to Dubai, with the help of Shri. Pravin Joshi, Representative and Shri. Vikas Doshi, Proprietor, CHA M/s. Virat Industries. 3.6 In the present case, following facts also prove that the FOB values declared in the shipping bills were not correct. i) Purchase of garment at much lower value. ii) Arrangement of receiving higher amount of foreign exchange from overseas buyer and return of differential amount on payment of Rs.1.50 per dollar (para 1.20 of this order). iii) Submission of forged ARE-Is (para 1.14 and 1.15 of this order) Based upon all these evidence, it is proved that the value declared by exporter is not the correct value. Hence, the same is required to be rejected based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 26.65 lakhs against 8 ARE - 1 (4 for Mens T shirt and 4 for ladies dress). The third and fourth copies of the ARE-Is of Men's T shirt tallied with the original andduplicate copies of the ARE-Is resumed from the exporter. The other four AREls pertaining to ladies dress were found to issue in the name of other exporters i.e. M/s. Daffodils Exports and M/s. Khazana Overseas and not M/s. MJM Corporation, Mumbai, The above facts clearly prove that Shri Rajiv Mehta had attempted to export the impugned goods against fictitious and forged AREls and Shri Shyam bhai of M/s.Sri Shyam Overseas, Surat, had not only indulged in issuing fake ARE-Is to facilitate the fraudulent export of spurious goods by M/s. MJM Corporation, Mumbai without actually supplying any goods, but also had attempted to claim a huge amount of Rs. 26.65 lakhs as Central Excise Duty rebate accruing on the supporting Central Excise invoices which were proved fictitious and forged. So I find that M/s. Shyam Overseas; Surat had played an important role and had abated in this alleged export, hence the acts of commission and omission are liable for penalization. Therefore, I order toimpose penalty on M/s Shyam Overs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004 arrived at the ascertained value of T-shirts @ Rs. 35/- to Rs. 45/- per piece; that it was not known as to when and under what reference number the representative samples were sent to AEPC, Mumbai; that in para 25 of the show cause notice, samples of T-shirts were got evaluated from M/s. Gayatri Textiles, Bhiwandi, Dist. Thane, who in their report dated 25.02.2004 had valued it at Rs. 23.50 per piece; that as per para 26 of the show cause notice, samples of Ladies Dress were got evaluated from M/s. Badrinath Fabrics, Bhiwandi, Dist. Thane who had held the samples to be not fit for use as ladies dresses having no commercial value; that all these market enquiries had been undertaken behind the back of the noticee who, at no stage, was associated with such market enquiries conducted as per para 24, 25 and 26 of the show cause notice; that the procedure adopted by the Department for such market enquiries lacks transparency and was in contravention to the principles of natural justice and hence, these enquiries were in the nature of ex-parte enquiries; that consequently, the valuation arrived on the basis of such enquiries had no legal basis and such valuations of the impugned goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 and 21.01.2004 vide his sworn affidavits dated 16.01.2004,19.01.2004 and 21.01.2004 before the Additional CMM, Esplanade Court, Mumbai; that in view of the aforesaid retractions, the statements of the noticee recorded under section 108 of the Customs Act, 1962 ceased to have any evidential value and being involuntary, could not be relied upon by the Department as evidence; that the noticee relied upon case law of Kalicharan Basantlal vs. CCE - 1989 (41) E.L.T. 162 (T) wherein it had been held that it is trite law that whenever a confessional statement is retracted, it is the duty of the authority deciding the case to take into consideration the said retraction and the truthfulness of the confessional statement; that the noticee also relied upon the Apex Court Judgment in the case of K.I. Pavunny vs. AC Cen. Excise, Cochin -1997 (90) E.LT. 241 (S.C.) wherein in para 10 it had been held that confessional statement of accused, if found to be voluntary, can form the sole basis for conviction. If retracted, Court is required to examine whether it was obtained by threat, duress or promise and whether the confession is truthful; that in view of the retractions cited above, and in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmit act that rendered the goods liable to confiscation. 6. Learned Authorized Representative narrated the backdrop for enunciation of the case against the appellant and drew attention to the blatant misdeclaration of quantity and value besides the elaborate subterfuge of resorting to prepared documentation as proof of procurement which enabled misuse of rebate and export promotion incentives. He also submitted that the appellant had testified to payments for the coverup and to arrangements at destination. He argued, with reference to decisions, that retraction was not relevant to testimony in statements and that cross-examination was not mandatory. 7. It is on record that cross-examination, of another noticee and a person whose valuation was the core of the notice, sought by appellant had been denied. It is not proper for a noticee in proceedings invoking the same penalty provisions to be cross-examined by another as the objective of adjudicatory proceedings is not determination of preference among noticees but evaluation of the role of noticees as having contributed to confiscation of goods. The case law cited by Learned Authorized Representative were judgements in which specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted area of the port of export after examination by the officer-noticee, and, though the adjudicating authority shied away from saying so, after the cessation of control over the goods by the appellant, possibility of substitution could not be foreclosed with much the same benefit flowing from shipment of goods of unknown provenance and diminished value as before; that, in any case, is different violation and allegation not incorporated in the show cause notice. The confiscability of the goods is not in dispute here; the appellant is in dispute over the penalty imposed on him, and as proprietor of the exporting entity, from consequence of the confiscation. The confiscation has been ordered on the ground of goods being prohibited and of not conforming to 'material' particulars declared for exportation. It is on record that goods were examined and allowed to be transferred to 'sterile area' from where they would be loaded on the carrier. With the officer-noticee having been discharged from the allegation of not having conformed to the statutory mandate in section 51 of the Customs Act, 1962, the conformity of the contents of the container, at that point in time, with the declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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