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TMI Blog2010 (10) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... apathy, Shri D.N. Panda, JJ. REPRESENTED BY : S/Shri Sumit Kumar, Vijai Kumar and Mahesh Rastogi, DRs, for the Appellant. S/Shri Sudhir Kumar for R. Chopra, Advocates, for the Respondent. [Order per : D.N. Panda, Member (J)]. - Both assessee and Revenue are in Appeal. Assessee is in Appeal with the prayer for setting aside the impugned order which resulted with following consequences under Customs Act, 1962 : (i) 18000 pcs. of Tent Peg exported vide Shipping Bill No. 3343 dated 7-5-2003 under the description of "Cold Chisel" declaring value thereof as Rs. 12,63,620/- were confiscated under Section 113(d) of the Customs Act, 1962 in view of actual value of Rs. 3,24,000/- revealed from market enquiry. (ii) 36,000 pcs. of Aldrop exported vide Shipping Bill No. 3344 dated 7-5-2003 under the description of "Gate Latch" declaring value thereof as Rs. 16,83,255/- were confiscated under Section 113(d) of the Customs Act, 1962 in view of actual value of Rs. 3,27,600/- revealed from market enquiry. (iii) 9600 pcs. of parts of garden rakes exported vide Shipping Bill No. 3345 dated 7-5-2003 under the description of 'garden Rakes' declaring value thereof as Rs. 7,71,374/- were confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality Garden/Hand tools at a higher value of Rs. 275/- to Rs. 300/- per kg. as against value of Rs. 40/- per kg. in domestic market. That was done to fraudulently claim undue export incentives. It was also found from ICD, PDG that proprietor of the Appellant Shri O.P. Jain was involved in crores of rupees export fraud and investigation against him was in progress. He was also found to have been arrested by Amritsar Customs for similar type of fraud and released on bail. Accordingly, the matter proceeded for thorough investigation. 6. Enquiry from proprietor of M/s. OST International, 586, MIE Bahadurgarh, Haryana on 6-8-2003 revealed that the approximate value of the samples were as under :- (1) Aldrop of all sizes approx. Rs. 35/- per kg. (2) Garden Rack without handle of all sizes approx. Rs. 37/- per kg. (3) Tent Peg approx. Rs. 18/- per piece. The proprietor of M/s. OST International opined that on the basis of his experience as manufacturer exporter, Item No. (3) referred to above was not 'Chisel' but a 'Tent Peg' as it had pointed tip and shape and hence it cannot be a Chisel. 7. On the basis of market enquiry, the values of items attempted to be exported i.e. "Ald ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entering a notch or cavity; specifically : the catch which holds a door or gate when closed even if not bolted. The item exported by the Assessee failed to conform to the technical specifications but mis-declared "Aldrop" as Gate latch and also inflated the value to get DEPB benefits unduly. 9. The Assessee did not dispute the report of CRCL except submitting before the Authority below that the goods were made of carbon steel of appropriate alloy composition taking into consideration its rigid, tuff and ruff use and sometimes those are referred to as "chisel made of forged quality carbon steel". Chemical analysis report issued by M/s. Khan Chand Hans Raj in respect of the steel used for the manufacturing of cold chisel submitted by Assessee vide letter dated 27-12-2003 indicated the carbon percentage as "035/45". That report did not bear any reference/serial no., date or description/quality/quantity of the sample received for analysis. But the grade of the sample was shown as EN 8. There was no correlation in said report with the composition of steel used in manufacture of export goods. The Appellant also failed to produce any printed literature regarding "Carbon steel" to j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee resorted to mis-declaration of description and value of goods. The laboratory test report remained uncontroverted. Also market inquiry revealed about the usage of goods and their nature as well as character. Accordingly appropriate valuation was done. What that was not popularly known in the market was claimed by the assessee to be so. The chemical analysis report and market enquiry report was safely adopted. Conduct of the assessee was questionable in view of his involvement in crores of rupees fraud for which he was arrested by Amritsar Customs. Value of the goods declared by assessee was excessive and high to claim DEPB benefit at the cost of Revenue for which confiscation was ordered. Assessee failed to rebut-the evidence tendered by Proprietor of M/s OST International leading .evidence although he merely challenged his no involvement in manufacture or export of the subject goods. Chemical analysis report of CRCL established assessee's goods to be of misdescription. Even technical literature produced by assessee failed to describe the goods seized. Over valuation of goods was established. The adjudication was justified and redemption fine as well as penalty was imposabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on "fraud" involves two elements, deceit and injury to the deceived. Undue advantage obtained by the deceiver, will almost always call loss or detriment to the deceived. Similarly a "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath [1994 (1) SCC 1]. 17. In a leading English case i.e. Derry and Ors. v. Peek - (1886-90) All ER 1 what constitutes "fraud" was described thus: (All ER p. 22 B-C) "fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false". This aspect of the matter has been considered by Apex Court in Roshan Deen v. Preeti Lal [2002 (1) SCC 100], Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [2003 (8) SCC 311], Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another [2004 (3) SCC 1]. Suppression of a material document would also amount to a fraud on the court, (see Gowrishanka ..... X X X X Extracts X X X X X X X X Extracts X X X X
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