2017 (10) TMI 1204 - AT - Customs

Penalty u/s 112(a) of the CA, 1962 - DEPB Scrips obtained fraudulently - Held that - if circumstances establish that there is high degree of probability that a prudent man ought to act on the supposition that there was design to obtain DEPB scrips without any export and such scrips sold for duty free import in contravention of the law or abetting to achieve such ill object, such act against public Revenue calls for penal consequence to curb such mischief. The term fraud within the meaning of these penal provisions is wide enough to take into its fold any one or series of acts committed. Such act or acts when demonstrate to be reasonably proximate to the clearance of imports duty free on the basis of the DEPB scrips fraudulently obtained against false documents filed before DGFT, a trader of such scrips has to face adverse consequence of law - appellant fails to succeed in his appeal having acted malafide causing detriment to the interest of public revenue. Ill will of appellants came to record. Pre-ponderance of probability is in favour of Revenue and lends credence to its case. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Duty free import using fraudulently obtained DEPB scrip.
2. Appellant's involvement in defrauding customs.
3. Defence plea of innocence discarded.
4. Fraud committed by appellant proven.
5. Uncontroverted investigation findings.
6. Liability under Customs Act, 1962.
7. Definition of proof under Evidence Act.
8. View of fraud in law.
9. Penal provisions to suppress defrauding Revenue.
10. Failure of the appellant to succeed in appeal.
11. Role of Customs Act and Customs Tariff Act in safeguarding the economy.

Issue 1: Duty free import using fraudulently obtained DEPB scrip
The judgment reveals that the appellant was involved in the sale of a DEPB scrip obtained fraudulently, leading to duty-free import. The appellant's actions were found to be in violation of the law, as the scrip was ab initio void due to fraudulent means of acquisition. The investigation established that the appellant's deliberate actions caused prejudice to Customs' interests by falsifying documents and presenting them to obtain and sell the scrip for illegal imports.

Issue 2: Appellant's involvement in defrauding customs
The appellant's conduct was deemed as defrauding Customs under the Customs Act, 1962. The authorities rejected the appellant's defense of innocence based on the investigation results that demonstrated fraud and forgery committed by the appellant. The appellant's premeditated design to deceive Customs by falsifying shipping bills and other documents was established through both oral and documentary evidence.

Issue 3: Defence plea of innocence discarded
Despite the appellant's plea of innocence, the authorities discarded it based on the probe results that highlighted the appellant's fraudulent activities. The appellant's failure to provide any credible evidence to prove innocence led to the dismissal of the defense plea.

Issue 4: Fraud committed by appellant proven
The Revenue established that the appellant committed fraud by selling fraudulently obtained DEPB scrips, causing harm to Customs revenue. The appellant's contumacious conduct and deliberate intention to evade duties were proven, as he failed to rebut the probe results showing his fraudulent activities.

Issue 5: Uncontroverted investigation findings
The investigation findings and conclusions of the lower authorities remained uncontroverted by the appellant during the proceedings. The lack of evidence or rebuttal from the appellant against the investigation results strengthened the case against him.

Issue 6: Liability under Customs Act, 1962
The appellant's active involvement in defrauding Customs for duty-free imports through fraudulently obtained DEPB scrips rendered him liable under section 112(a) of the Customs Act, 1962. His deliberate actions to deceive Customs and obtain undue fiscal incentives were considered serious offenses.

Issue 7: Definition of proof under Evidence Act
The judgment highlighted that the Evidence Act does not require absolute proof, but rather a preponderance of probability. The court emphasized that when circumstances indicate a high probability of fraudulent activities, penal consequences are warranted to curb such misconduct against public revenue.

Issue 8: View of fraud in law
The judgment elaborated on the legal view of fraud, emphasizing that deceit and injury to the deceived are essential elements. Fraudulent actions, including misrepresentation and suppression of material facts, are viewed seriously in law, especially when they result in undue advantage and loss to others.

Issue 9: Penal provisions to suppress defrauding Revenue
Penal provisions are enacted to suppress activities like defrauding Revenue, which negatively impact public revenue, foreign exchange, and economic stability. The law aims to prevent evasion and circumvention of statutes to safeguard the economy's interests and curb deceptive practices.

Issue 10: Failure of the appellant to succeed in appeal
The appellant's appeal failed as he acted malafide, causing detriment to public revenue. The judgment emphasized that the evidence presented by the Revenue remained unchallenged, and the appellant's role in committing the offense was not ruled out. The preponderance of probability favored the Revenue's case, leading to the dismissal of the appeal.

Issue 11: Role of Customs Act and Customs Tariff Act in safeguarding the economy
The Customs Act and Customs Tariff Act serve as potent instruments to safeguard the economy's interests, including preventing deceptive practices related to fiscal incentives. The judgment underscored that these statutes are crucial for protecting the economy and ensuring compliance with trade regulations to prevent undue claims and fraud against public revenue.