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TMI Blog2007 (9) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the goods meant for export, for sale later on in the open market and fraudulently attempting to avail of undue/illegal benefits under the Duty Free Replacement Certificate (i.e. DFRC) Scheme. If fraud was not discovered at the time of export by the department, he would have imported dutiable items without payment of applicable duty under DFRC Scheme. The Appellant Ramesh Bafna is the Proprietor of M/s. Mileage International, a Merchant Exporter, who filed two Shipping Bills 2585558 dated 9-2-2004 and 2588766 dated 11-2-2004, for export under DFRC Scheme of 570 cartons in each of Stainless steel utensils consisting of cutlery, spoon, fork, rice ladle, thala, top set, of f.o.b. value Rs. 20,30,293.60 & Rs. 21,39,429/- respectively. The goods were manufactured and factory stuffed by supporting manufacturer M/s. Rajguru Impex India Pvt. Ltd., Sarigam, Vapi, of which Shri Ramesh Bafna is the Managing Director. The said two shipping bills were accompanied with all the requisite supporting documents, examination report on the reverse of the Invoice by the Inspector and Superintendent of Central Excise Range, Sarigam, dated 9-2-2004 and 10-2-2004 respectively. M/s. Rajguru Impex and Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 cartons having been hidden in the labourer's room. 6. Shri Dinesh A. Jain in his statement admitted that he was working as Manager in M/s. Rajguru Impex India Ltd. on the relevant dates of 9-2-2004 and 10-2-2004. Shri Bhurra Ram Narayanji Vishnoi was working as stuffing supervisor and he was not present for sometime at the time of stuffing of the goods in the containers at the factory at Sarigam and that the stuffing was being done after he received instructions from the Appellant. He stated that when he came to know about recovery of bricks which were stuffed in the containers, he found later on while checking the stock at his factory that there were 950 cartons over and above and also in excess of the actual stock in hand and these were the same which were required to be exported in the containers from which the bricks were recovered; that on 12-5-2004, Shri Bhurra Ram came to his residence and confessed to him in order to make money he had substituted the stainless steel utensils cartons with cartons filled with bricks and surreptitiously kept the stainless steel utensils cartons in the labourer's room to sell the same later on in the local market and make money out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The Superintendent of Central Excise, Sarigam, Vapi Shri. S.K. Jha, in his statement confirmed that after giving instructions for examination and stuffing, he supervised the initial inspection and then left for inspection of containers at other factories and after having been informed that stuffing has been completed, he along with the Inspector signed the relevant documents and the Inspector then sealed the container. As M/s. Rajguru Impex India Ltd. had a clean track record, he and the Inspector, therefore, trusted the company's representative and believed that the stuffing was done properly. 10. The Inspector of Central Excise, Sarigam, Vapi Shri Mukesh Kumar Sharma stated that he had examined the cargo as instructed by the Superintendent, and because of other works, he had left for inspection of containers at other factories. After having been informed that stuffing was completed, he along with the Supdt. signed the relevant documents and then he sealed the container. As M/s. Rajguru Impex India Ltd was having clean track record for many years he trusted the company's representative and believed that the stuffing was done properly. 11. The Inspector of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were heard at length. Ld. Counsel for the appellants vehemently argued that the appellant Shri Ramesh P. Bafna is innocent and had no conscious knowledge about the fraud committed by his employee Shri Bhurra Ram Narayanji Vishnoi and that the department did not gather sufficient evidence to attribute his knowledge and the role played by him. Therefore, in this context they pray to set aside the confiscation order and as well as penalties imposed on the appellants. 17. Ld. DR, on the other hand contended that in the instant case 600 cartons of bricks were substituted to conceal the steel utensils and this much maneuvering is not possible without knowledge, consent and connivance of the employer. It is huge task and impossible for one man to replace the brick cartons in place of steel utensils, as such, the circumstances tend to show the involvement of the appellants in the said fraud and one can draw irresistible inference to that effect. 18. On examination of the record and considering the submissions made by both sides, it is to be observed at the outset that there is no allegation by the department that the foreign buyer is either front company of the appellants or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available. As he did not get any opportunity of selling them, he kept them at that place intact. This place is situated outside the factory premises. These circumstances would go to show non-accessibility of the employer to that place. Had there is knowledge of the employer about this activity, Shri Bhurra Ram Narayanji Vishnoi would have kept them within the factory premises itself. On one hand this theory would establish absence of knowledge and consent of the employer coupled with the fact that during relevant time, the employer was also away from the factory premises. There is also possibility to infer about the connivance and collusion of employer in the alleged act. But this inference is not irresistible and does not conclusively prove the factum except leading to a strong suspicion. It is well established principle that however strong the suspicion may be, it does not take the place of proof. Though the case is not required to be proved with mathematical precision, there must be some evidence to show conscious knowledge and guilty intentions to sustain the allegations even on preponderance of probability. In view of the fact of past clean record and as there is no single i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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