2011 (11) TMI 64 - HC - Customs

Penalty on Preventive Officer (Inspector customs) - Fraudulent transactions - Value of export - claim of DEPB credit - held that - Files relating to shipping bills went missing and were not traceable. The appellant was/is an officer working with the customs department. Three other customs officers were also issued show cause notice under Section 114 of the Act though ultimately against the said officers proceedings were dropped vide the order dated 15.3.2010. This aspect has been kept in mind by the tribunal. With regard to over invoicing there is documentary evidence and material on record in the form of the export value declared in India and the import value declared and calculated by the USA Customs. On several other aspects there is oral testimony including the statements of Tejwant Singh his customs clearing agent Sanjay Kumar and Jagmohan Singh who were also involved in export of the said consignments. Thus findings recorded cannot be categorized as perverse or based on no material or evidence.

Summary

Issues Involved:
1. Market enquiry report not on record.
2. Factory verification report disbelieved.
3. Lack of evidence for examination and clearance of shipping bills.
4. Telephone conversations not establishing conspiracy.
5. Retraction of Jagmohan Singh's statement.
6. Exoneration of other departmental officers.

Issue-wise Detailed Analysis:

1. Market Enquiry Report Not on Record:
The appellant contended that the market enquiry report was not placed on record. However, the court did not find this argument sufficient to overturn the tribunal's decision, as the appellant's involvement was substantiated through other evidence and statements.

2. Factory Verification Report Disbelieved:
The appellant argued that the factory verification report was wrongly disbelieved. The court noted that detailed verification revealed that Tejwant Singh did not have the necessary machinery or technical knowledge for manufacturing microphones at the Mayapuri factory. This was corroborated by Tejwant Singh's own statements admitting the submission of fake documents and the non-existence of the factory.

3. Lack of Evidence for Examination and Clearance of Shipping Bills:
The appellant claimed there was no evidence to show he carried out the examination and clearance of 19 shipping bills. The court found substantial evidence, including the appellant's admission of examining microphones for seven shipping bills and his deputation for market valuation and factory verification. The statements of Sanjay Kumar and Jagmohan Singh further corroborated the appellant's involvement in the fraudulent activities.

4. Telephone Conversations Not Establishing Conspiracy:
The appellant argued that mere telephone conversations with Tejwant Singh did not establish conspiracy or collusion. However, the court highlighted the significant frequency of calls (134 occasions) between the appellant and Tejwant Singh, which, along with other oral testimonies, established a close relationship and corroborated the appellant's involvement in the fraudulent scheme.

5. Retraction of Jagmohan Singh's Statement:
The appellant pointed out that Jagmohan Singh had retracted his statement. The court rejected this argument, noting that the tribunal relied on Jagmohan Singh's un-retracted statement from 29.8.2001, which detailed his involvement and the appellant's role in the fraudulent activities. The retraction of the 15.10.2001 statement did not undermine the credibility of the earlier statement and other corroborative evidence.

6. Exoneration of Other Departmental Officers:
The appellant argued that other departmental officers were exonerated and thus he should not be penalized. The court dismissed this argument, stating that negative equality cannot be pleaded as a defense. The focus was on the appellant's specific role and evidence against him, which justified the penalties imposed.

Conclusion:
The court upheld the tribunal's decision, confirming the penalties imposed on the appellant and others. The findings were based on substantial evidence, including oral testimonies, documentary evidence, and the appellant's admissions. The appeals were dismissed, and no substantial question of law was found to warrant overturning the tribunal's order.