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TMI Blog2006 (7) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The period of detention is over. The petitioner and his counsel, however, seek quashing of the impugned detention order as the same may have ramifications under SAFEMA and other statutes. 3. Before considering the petitioner's challenge to the impugned detention order, the facts as they emerge from the grounds of detention are being set out: (i) Information was received in November, 2003 that the petitioner was involved in fraudulent availment of duty drawback and DEPB incentives available to the exporters on the export of readymade garments, leather goods and woolen garments etc. Petitioner is alleged to have adopted an ingenious modus operandi for the fraudulent availment of export incentives. Petitioner set up 10 firms in the name of his brothers and associates as proprietors and exports were shown in the name of these firms. In fact, these firms belonged to and were owned by the petitioner himself. (ii) Petitioner used to collect foreign currency from tourists upon their arrival in India and deposit it in the bank account of the above firms as advance payment from foreign buyers for export orders. Petitioner would give Indian currency to the foreign tourists ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orty Three only). (iv) The grounds of detention attached to the detention order list out comprehensively the searches made in the offices, residence of the petitioner and his associates and the premises of firms for which the petitioner was paying rent. The grounds of detention also list out the numerous firms (10 to 11) in the names of which the petitioner purportedly exported the goods to fraudulently claim the DEPB and duty drawback benefits. (v) It is significant that petitioner, his brother Arun Dogra and Ajay Dogra as also other associates made their voluntary statements under Section 108 of the Customs Act giving complete description of the manner and methodology of the transactions carried out through various firms. The associates also accepted that the firms were owned and controlled by petitioner and the persons being shown as proprietors of the respective firms were in fact employees or retainers of the petitioner. The statements under Section 108 of the Customs Act, which are descriptive and comprehensive even with regard to the manner of how the tourists were contacted and currency purchased. The grounds of detention set out the depositions made by the various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... photocopies of passports of foreign tourist, prepare/fabricate letters in your office, showing the foreign tourist as the representative of the overseas buyer and submit the fabricated letters, copies of passport and CDF collected from the commercial tourists along with the foreign currencies with the bank, mis-stating the foreign currency as advance payment for his exports. (e) Petitioner had fraudulently claimed/availed DBK and DEPB amounting to several crores, declaring his firms as exporters of goods, whereas they were actually purchased by foreign tourists in commercial quantities. Petitioner also willfully over-invoiced value of such goods. While petitioner was essentially a freight forwarder, he fraudulently availed of the export incentives, due only to a bona-fide exporter. Petitioner created bogus documents (export invoice) to over-invoice the goods exported in the names of his firms with the malafide intention of claiming excessive export incentives, viz. duty drawback and DEPB credit. 4. Petitioner was duly supplied with the list of relied upon documents. In the relied upon documents from Sl. No. 86 to 96, respondents furnished the details of shipping bills in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the detention order as it disabled the petitioner from making an effective representation. Elaborating this further, Mr. Kumar referred to the figures given in para 26 of the grounds of detention. He submitted that the fraudulent amount of DEPB and duty drawback was given as ₹ 19,94,13,342/-. He submits that the figures given in respect of the firms Shree Vaibhav Exports, S.H. Enterprises and R.D.R. Overseas in the ground of detention and as per the computation of the P-1 register, the tabular compilation and the relied on document at page 396, all vary. The petitioner craves leave to refer to his rejoinder affidavit where in a tabular form, the petitioner has sought to bring forth the discrepancies in these figures. FIRM P-III PAGE 396 RELIED ON TABLE IN PARA 26 G.O.D P-1 REGISTERS P-II TABULAR COMPILATION OF DOCUMENTS Shree Vaibhav Exports 2.95 Crores 4.86 Crores 3.06 Crores 9.37 Crores S.H. Enterprises 1.29 Crores 0.62 Crores 0.90 Crores 0.49 Crores R.D.R. Overseas 2.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utiny by the customs. He says that the exports having ceased, there was no proximate link or cause left for the detention of the petitioner under the Act. 9. Learned Counsel for the respondents refuted the submissions made by the petitioner's counsel. She submitted that the gravamen of the allegations made against the petitioner was the fraudulent exports in the name of numerous benami firms controlled by him to claim illegally drawback and DEPB. It is the respondents' case that the same were in contravention of Section 113 of the Customs Act and fell within the definition of smuggling also. The transactions which were presented as exports and against which remittances were shown as having come from overseas buyers, were in fact, the foreign currency purchase from the tourists who, in turn, were supplied Indian currency and who, in fact, used to purchase the goods, which were then shipped by the petitioner through the benami companies after over-invoicing and claiming the DEPB and duty drawback benefits. As noticed earlier, the grounds of detention have set out in detail the activities of the petitioner and his associates coupled with the statements under Section 108 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded that the detenu in his statement in his own hand, had described how he had obtained the passport and how he had been traveling abroad several times and used to smuggle foreign goods in. It was also noted in the grounds that he had made 23 foreign trips under his old passport and four trips under the current passport and the said passports contained entries of foreign visits made by him. The appellant's counsel contended that the detaining authority had utilized the passport entries as would be apparent from the above and, therefore, the non-supply of these essential documents vitiated the detention. Supreme Court referred to the decisions in M. Ahmad Kutty v. Union of India and Anr. reported at and Badhrunnissa v. Union of India and Ors. reported at . In the latter decision, the Court while reaffirming the right of the detenu to receive the document which was taken into consideration by the detaining authority while formulating the grounds of detention held that the obligation was cast on the detaining authority to supply them in the language known to the appellant. The Court also put a rider that non-supply of each and every document do not provide a ground for setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant-detenu prejudicially affect his right to make proper representation against the order of detention. The non-supply of copies of the passports will not have the effect of vitiating the detention order. 13. Respondents in the present case are placed in far better circumstances. The shipping bills were not the relied on documents. All particulars and details which are contained in the shipping bills were furnished. The basis of the detention order originated from the numerous documents and evidence made available to the detenu with regard to the several transactions carried out by him through the benami firms. Above all, the statements under Section 108 of the Customs Act of the petitioner and his associates which alone provide sufficient material before the detaining authority to pass the detention order. 14. Coming to the discrepancies alleged, it may be noted that these were not specifically pointed out either in the representation or before the Advisory Board and not even in the writ petition except at the time of filing of the rejoinder. Assuming there were discrepancies which would point out that the fraudulent amount of drawback as computed by the department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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