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TMI Blog2008 (12) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... Market Value (Rs.) Drawback amount claimed 1. 1228826 17-11-99 23/99-00 4-11-99 Children s skits 8100 20,82,271 22,90,498 3,33,163 2. 1228827 17-11-99 19/99-00 4-11-99 Children s skits 8100 20,82,271 22,90,498 3,33,163 3. 1228828 17-11-99 24/99-00 4-11-99 Children s skits 8700 22,36,458 24,60,104 3,57,868 4. 1228829 17-11-99 21/99-00 4-11-99 Children s skits 8100 20,82,271 22,90,498 3,33,163 5. 1228830 17-11-99 22/99-00 4-11-99 Children s skits 8100 20,82,271 22,90,498 3,33,163 6. 1228831 17-11-99 20/99-00 4-11-99 Children s skits 8100 20,82,271 22,90,498 3,33,163 TOTAL 49200 1,26,47,813 1,39,12,594 20,23,683 On specific information, officers of Directorate of Revenue Intelligence (DRI) inspected the consignment and after examination of the said Bills of Entry and drawing the representative samples ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Pawar, working for the CHA firm M/s. Vegha Shipping Tpt. Co., who had earlier handled the export of two consignments of readymade garments under Duty Drawback Scheme for the same firm, M/s. Kanchi Impex Pvt. Ltd., Ahmedabad was aware that in the present export consignment the children/ladies skirts/frocks the declared FOB values were highly over valued and the correct value was not more than Rs. 10/- per piece. Shri Suresh Pawar was holding the Customs pass for the CHA firm and dealt with the goods in transporting the same to the Docks, whereas the CHA firm had earlier declined to handle the consignment for export processing. (vi) The valuation report obtained by the DRI Offices for the samples of the frocks/skirts drawn from the consignment shows that the goods being exported herein were not valued more than Rs. 10/- per piece. The correct FOB value of the goods 49,200 pcs of the frocks/skirts thereby works out to only Rs. 4,92,000/- whereas the declared value was Rs. 1,26,47,813/- with the claim for the drawback for Rs. 20,23,683/-. The persons involved in the export were the same as above and the export values declared in the shipping bills were highly over valued to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1962. (d) Penalty should not be imposed on each of them under Section 114(i) and 114(iii) of the Customs Act, 1962. All the appellants herein contested the show cause notices on various grounds. They sought cross examination of the major witnesses, which were allowed. 4. After considering the submissions made by the noticees before him, the adjudicating authority vide the impugned order confiscated all consignments sought to be exported, rejected the drawback claims and imposed penalty on all the noticees. The noticees herein have filed the appeal against such imposition of penalty. 5. Learned Counsel Shri S.N. Kantawala appears for the appellant Shri Sanjay N. Mehta (in appeal No. C/481/02). Shri Kantawala submits that there is no evidence against this appellant in the entire Order-in-Original. It is his submission that the appellant had nothing to do with the consignment and had only introduced principals and arranged for the meeting of the clearing agent. He draws our attention to the findings as has been recorded by the adjudicating authority in para 41. It is his submission that none of the persons had implicated the appellant at the initial stage. It is his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as of Shri Alpesh Shah and Shri Sanjay Mehta. He submits that Shri Sanjay Mehta was untraceable during the investigation and never respondend to the summons issued to him. As regards Shri Alpesh Shah, it is his submission that his statement was recorded on 10-1-2000 and on subsequent summons he did not appear before the authorities. He draws our attention to the statement of Shri Nayan Ramanlal Thakkar and submits that it very clearly inculpates that Shri Alpesh Shah and Sanjay Mehta used to take signatures on the blank cheque of the current account of Kanchi Impex Pvt. Ltd. It is submission of the learned SDR that Smt. Rupaben Thakkar was doing a tailoring job and could not had have (sic) resources to do export of this magnitude. 9. In a rejoinder, Mr. Naresh Thacker would submit that statements of Smt. Rupaben Thakkar and Shri Nayan Thakkar did not implicate the appellant Shri Alpesh Shah in their earlier statements, but was implicated subsequently. It is his submission that Revenue has relied upon their old statement on ground of excess drawback claim. It is his submission that Revenue has not issued any show cause notice for the earlier consignment cleared by the Kanchi Impex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect and they had no interest in foreign buyer and nor they are related each other. 13. We find that the non-retraction of the statements by the Directors of Kanchi Impex Pvt. Ltd. and non-appearance of Shri Sanjay Mehta and Alpesh Shah before the adjudicating authority for recording their statement would draw adverse inference. This adverse inference has to be considered in proper perspective in order to penalize the appellants under the provisions of Section 114 of the Customs Act, 1962. The goods are liable for confiscation for mis-declaration of the value and role played by Shri Sanjay Mehta and Alpesh Shah make them liable for imposition of penalty under Section 114 of the Customs Act, 1962. Considering the fact that M/s. Kanchi Impex Pvt. Ltd. in their reply to the adjudicating authority has claimed that the entire action was their own and also considering the fact that there is no retraction of statement of Directors, we find that Shri Alpesh Shah and Sanjay Mehta were, in fact, motivating force behind the entire case. In facts and circumstances of the case, we find that the penalty imposed on Shri Alpesh Shah and Sanjay Mehta under provision of Section 114 of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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