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TMI Blog2007 (5) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... s, we shall out line the brief facts. M/s. Surya Lights, New Delhi had imported Compact Fluorescent Lamps (CFL) from Sri Lanka through Inland Container Depot (ICD), Bangalore. On the basis of intelligence, the officers of the Customs Headquarters (Preventive), Central Intelligence Unit (CIU), conducted certain investigations. As per the investigations, the importer had mis-declared the country of origin of the goods in order to avail the benefit of exemption under the Indo-Sri Lankan Free Trade Agreement (ISFTA) and also to evade the payment of anti-dumping duty leviable on the CFL imported from or originating from China. According to the Show Cause Notice dated 30-4-2004 issued to the importer and the others, Shri Amit Choudhary, Appraiser of the Customs had colluded with Shri Jagadish P. Bajaj and the CHAs, S/Shri Nanjundappa and Srikanta Datta who have successfully replaced the existing documents to the Bill of Entry No. 20244 with tampered documents. The commissions and omissions of Shri Amit Choudhary are set out in Para 41.18 of the Show Cause Notice. In terms of the Show Cause Notice, he was asked to show cause to the Commissioner of Customs for imposition of penalty under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, Shri Amit Choudhary colluded, connived with the importer and the employees of the CHA in their attempt to evade payment of Anti-Dumping Duty which were applicable on CF Lamps imported from China. Hence the appellant is liable for penalty under Section 112(a) of the Customs Act. He imposed a penalty of Rs. 50,000/- on the appellant. 8. The Bill of Entry dated 6-11-2003 was filed by the CHA, M/s. Chakiat Agencies along with the following documents :- (a) Invoice No. 12336, dated 20-10-2003 of M/s. Red Sea Trading Company, Hong Kong. (b) Packing list to Invoice No. 12336, dated 20-10-2003 issued by M/s. Red Sea Trading Company, Hong Kong. (c) Bill of Lading No. CMB/BLR/00112. (d) Photocopy of country of origin certificate No. COO/ISFTA/ 03/7155. (e) GATT declaration. The appellant is the Appraiser of Customs. His duty is assessment of the Bill of Entry so that the appropriate duty as assessed is collected from the importer. The declaration with regard to the goods is Energy Saving Lamps. The appellant marked the B.E. for first check examination. The goods were examined at ICD on 7-11-2003. The B.E. after examination was returned to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve already stated that the appellant ordered examination of the goods in the B.E. even before assessment. The examination report in the B.E. is as follows :- Opened Container No. TEXU 209161-0 and examined 5% of the cargo found to contain Energy Saving lamp 7w as per invoice No. 12366, dated 20-10-03. In the item, the endorsement is made in Sri Lanka , however the invoice specifies the COO as China. Invoice attested; affixed OTL No. 180570. The samples drawn and put up for perusal . The examination report reveals that the invoice which was filed along with the B.E. was attested by the examining officer. However, the appellants had assessed the B.E. on the basis of an invoice which was replaced and in which the country of origin column was left blank whereas in the invoice which was first filed the country of origin was shown as China. The statements of Shri Jagdish Bajaj and CHA representatives Shri Nanjundappa and Datta clearly reveal that the tampering and replacement of the documents were done with the knowledge of the appellant. We are not convinced by the learned Advocate s contention that there is no evidence against the appellant. We have gone through all the statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly ,I got the letter prepared and signed it and faxed it to Chakiat Office at ICD. It is the same fax that you have recovered from Chakiat Office on 22-11-2003 . Further the following extracts also reveal the complicity. Q : Who gave you the idea to put whitener fluid on the word China in the invoice and to take Xerox of it and replace the invoice enclosed to the Bill of Entry? A : The CHA persons either Nanjundappa or Dutta had told me to do this as per the directions of Amit Choudary. Q : What did you do after that? A : On 18th I got a call from the CHA, asking me to come to Bangalore. On 19-11-2003, I reached Bangalore and went to Chakiat Office around 2 -2.30 p.m. and then from there Nanjundappa and myself went to ICD. We asked Amit what the problem was. Amit showed us the Customs Tariff and told us that Anti Dumping Duty was leviable and that even MRP was to be taken into consideration. He informed us that the ADD and MRP would work out to 2 or 3 crores. Then I asked Amit what was the way out. Amit took out the Bill and showed it to us and told that the invoice number in the COO and the invoice does not tally. He then told me to go and prepare an invoice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ceyenergy Electronics Pvt. Ltd., a Sri Lankan Company so that the importer could escape from Anti-Dumping duty. He has also suggested to Shri Bajaj to tear off the top of the fax which had the number from where Shri Bajaj had faxed the fabricated invoice. The investigating officers recovered the torn portion also. Shri Bajaj put the whitener fluid in the word China , took Xerox copy and replaced it. The motive is to see that the Anti-Dumping duty is not leviable. However on 19-11-2003, on the advice of the appellant a fabricated invoice was replaced. Here the motive is to ensure that the particulars of the invoice shown in the country of origin certificate corresponds with the invoice. For this purpose, the fabrication was done with the advice and knowledge of the appellant. Shri Bajaj has not retracted from his statements. The following extract from the statement of Shri B.A. Srikanta Datta given on 27-11-2003 clearly indicates the role of the appellant in the replacement of the documents. Q : Please see the copy of the invoice and packing list enclosed to the B.E. No. 20244 where the column origin is blank. Is this the copy of the invoice and packing list which was replace ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the said B/E was handed over by Venkatesh to Appraiser Gopinath saying that the DC wanted the said B/E as there was some problem. Later in the evening Amit Appraiser called me on intercom phone and told me to come to his room immediately. When I went there around 4 p.m. Amit Appraiser told me to prepare another set of B/E for this consignment immediately and to bring it at once as the Commissioner was coming and there was some problem in the B/E. He gave me the additional copy of the said B/E as a reference for preparing the new set on the same lines. When I asked him why another set of the same B/E should be prepared and that to after the assessment has been completed, Appraiser Amit told me that there was some problem so he needed another set immediately before 5 p.m. He did not clarify anything further. So I took the additional copy and made a Xerox and faxed it to my colleague Gopinath in the city office to prepare yet another set. I then folded the additional copy and left it in the city office on 18-11-2003. Q.: Please see the fax copy of the B/E No. 20244 which has been recovered under mahazar dated 24-11-2003 from you city office at M.G. Road. Who has sent this fax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements of the examining officer. The appellant completed the assessment on 15th November 2003. When the assessment was completed, the invoice did not contain the word China . Probably the appellant thought that in the absence of word China in the invoice and in view of the country of origin certificate indicating the origin as Sri Lanka, the benefit of Notification under Indo-Sri Lankan agreement could be given to the impugned goods. In terms of the agreement and by virtue of notification, the basic duty would be nil. At the time of assessment, the appellant had not detected the discrepancy between the invoice number mentioned in the country of origin certificate and the invoice number of M/s. Red Sea Trading Co. which was replaced on 13th November 2003. Later he came to realize the goofing up. That is why his brain wave made him advice the importer to obtain an invoice in the name of Ceyenergy Electronics Pvt. Ltd., Sri Lanka. Funnily, this is all done after completing the assessment and giving the benefit of duty exemption. In fact, when the fabricated invoice was brought, the assessment papers had already been submitted to the Deputy Commissioner. The fabrication of the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word China in the invoice would create problem and with his knowledge with whitener ink, the said word was removed. The first invoice was replaced on 13th November 2003 by invoice which did not contain the word China. Similarly packing list and GATT declaration were also replaced with his knowledge. (ii) The appellant advised the Importer to prepare an invoice from M/s Ceyenergy Electronics Pvt. Ltd., Sri Lanka. The said invoice was fabricated. The appellant advised the importer to tear off the top portion of the fax copy. The department has recovered the torn portion. The importer has also accepted the fraud committed with the blessing of the appellant. (iii) The first invoice was attested by the examining officer. The appellant was either ignorant of that fact or had the audacity to replace it with another invoice with the word China deleted. (iv) When the appellant smelt trouble in desperation he had asked the importer to prepare the new set of documents and in fact had given him the extra copy of the Bill of Entry. These papers had been recovered by the Department from the premises of CHA. 9. Thus, there is conclusive evidence that the appellant abetted the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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