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TMI Blog2015 (11) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs does not in any affect the case against the Appellant. The case of the Department against the Appellant stands substantiated by the evidence on record. Considering the number of consignments and the value thereof, the submission that there was heavy pressure of work and therefore, the Appellant cannot be held responsible is unacceptable. - There is no legal infirmity in the impugned orders of the Commissioner of Customs or the CESTAT. Further, the penalty levied on the Appellant cannot be said to be excessive. It does not call for interference. - Decided against assessee. - CUS. A. C. 2/2007 - - - Dated:- 5-11-2015 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Ms. Meenakshi Arora, Senior Advocate with Mr. Piyush Kumar, Ms. Shikha Sapra, Mr. Tushar Joshi, Advocates For the Respondent : Mr. Rahul Kaushik, Senior Standing counsel JUDGMENT S. Muralidhar, J. 1. This is an appeal by the Appellant, S.N. Ojha, former Assistant Commissioner (Export), posted at the Inland Container Depot ( ICD ), Tughlakabad under Section 130 of the Customs Act, 1962 ( Act ) against an order dated 21st November 2005 passed by the Customs, Excise and Service Tax App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers were examined by the Officers of DRI between 12th December 1998 and 11th March 1999 the goods were found to be old and used. Mr. Joseph Kuok, Superintendent of Customs who had given the Let Export Orders , Mr. Lovkesh Sharma, and Mr. Zaki Anwar, Inspectors who had issued the examination report for the consignments, the Clearing Agent and the Clearing Clerk who had attended to the exports were summoned by the DRI Officers under Section 108 of the Act. On examination of 26 containers it was found that there was no marking of serial numbers on the cartons in some of the containers. Further although some cartons were numbered, those did not tally with the serial numbers given in the shipping bills, invoices and packing lists. Also the goods were not found as per the declarations given in the shipping bills and invoices by the exporter. Some of the garments were spoiled, discoloured and torn. The value of the goods in all 26 containers was assessed at ₹ 69,26,325 as against the declared FOB value of ₹ 31,39,72,656.77 on which fraudulent drawback claimed was ₹ 5,43,91,420. 7. The investigation revealed that 10 containers load of readymade garments which had ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Appellant despite the fact that the said bill was over-valued. The statements of the Inspectors showed that the Appellant s complicity and awareness. (b) The frequency of calls received by and made by the Appellant to Mr. Rajesh Kumar, the proprietor of the five concerns viz., M/s. R.S. Co., M/s. Himgiri Overseas, M/s. Deepshikha Overseas, M/s. Stitch Style and M/s. Saharanpur Handicrafts, New Delhi indicated that the Appellant knew Rajesh Kumar. The evidence showed that Rajesh Kumar was introduced to the Appellant by his predecessor Mr. J.P. Singh, Assistant Commissioner and therefore, Rajesh Kumar was known to the Appellant. (c) The Appellant's plea of heavy pressure of work or pre-occupation was not believable. In light of the instructions issued by the Department that goods for which the drawback claim made was over ₹ 1 lakh would require scrutiny/approval of the Assistant Commissioner before clearance, the Appellant could not divest himself of his responsibility by pleading ignorance. (d) 85 of the 100 shipping bills were assigned for examination to Mr. Lovkesh Sharma and this was confirmed by Mr. Joseph Kuok, Superintendent. (e) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant in the room of Superintendent was patently wrong and uncorroborated. Neither Joseph Kuok nor R.S. Tandon, who were the Superintendents, had ever stated in their respective statements that Anwar had showed the samples to the Appellant in their room. There were numerous inconsistencies in the statements of Joseph Kuok, Lovkesh Sharma and Zaki Anwar which made their statements unreliable and inadmissible in law. Reliance was placed on the decisions in Mohtesham Mohd. Ismail v. Special Director, Enforcement Directorate 2007 (8) SCC 254, Vinod Solanki v. Union of India 2009 (233) ELT 157 (SC), Union of India v. Bal Mukund 2009 (12) SCC 151, Noor Aga v. State of Punjab (2008) 16 SCC 417. (vi) Joseph Kuok was fully exonerated in the Department's proceedings despite being named by the CBI in the chargesheet. (vii) The public notice issued by the Department required the Assistant Commissioner to scrutinise export declarations/shipping bills by perusing the particulars online. He was not required to inspect the bills even where the drawback claimed was over ₹ 1 lakh. The processing of the shipping bills was complete even prior to the arrival of the goods in the shed. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as withdrawn. 14. Mr. Kaushik pointed out that the Court ought not to interfere with the concurrent findings of the Commissioner and the CESTAT unless they were shown to be perverse. Reliance was placed on the decisions in Naresh J. Sukhawani v. Union of India 1996 (83) ELT 258 (SC); Collector of Customs, Madras v. D. Bhoormul (1974) 2 SCC 544; K.I. Pavunny v. Assistant Collector (HQ), C. Ex. Collectorate, Cochin 1997 (90) ELT 241 (SC); Balkrishna Chhaganlal Soni v. State of West Bengal 1983 ELT 1527 (SC); Vishnu Kumar v. Commissioner of Customs, New Delhi 2010 (26) ELT 356 (Del); Surjeet Singh Chhabra v. Union of India (1997) 1 SCC 508 and Telstar Travels Private Limited v. Enforcement Directorate (2013) 9 SCC 549. 15. Mr. Kaushik also drew the attention of the Court to the fact that as far as the co-noticees were concerned, the appeals filed by Mr. Satish Gupta and Mr. Anwar against the order of the CESTAT had failed. The further appeals filed by them in Supreme Court were also dismissed. 16. Before proceeding to discuss the above submissions, the Court proposes to discuss the legal position as regards the scope of the judicial review. The Court also notes that by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Special Director, Enforcement Directorate (supra) which held that a confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom. 20. In K.I. Pavunny v. Assistant Collector (supra), the Supreme Court held in the context of a retracted confession, that rule of prudence and practice does require that the Court seeks corroboration of the retracted confession from other evidence. It was further observed: it is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of given set of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserve that its powers of judicial review in the present appellate proceedings would not extend to again analysing the evidence threadbare. The reference made hereafter to the statements of the officers recorded during the investigation is for the limited purpose of examining whether any relevant evidence has been overlooked or whether the appreciation of the evidence by the authorities below is perverse or whether the conclusions drawn on the analysis of such evidence is that which no prudent person could have arrived at. 25. The Court notices that the criticism by the Appellant of the statements of Lovkesh Sharma and Anwar is not that they were obtained under duress or coercion but they were made belatedly with a view to escaping liability and passing the blame on to the Appellant. Lovkesh Sharma and Anwar were co-noticees with the Appellant. Their statements are no per se exculpatory. Even the statement of Joseph Kuok does not appear to indicate that he was denying his role altogether. 26. As far as Zaki Anwar is concerned, the first two statements on 9th and 10th February 1999 were made during the panchnama proceedings. He was asked certain specific questions to which he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to prove that the samples were shown to him. Moreover AC had denied having seen the samples, what do you say about this? Ans.4 I have gone through the statement dated 25th August 1999 of Sh. S.N. Ojha, AC and I have put my dated signature on the same. As stated in my answer to question no. 2 above, that this fact can be verified from the computer print out at ICD, Tughlakabad that I fed the remarks Samples shown to AC and I once again state that after showing the samples to AC, I fed the said remarks. 28. Likewise Lovkesh Sharma in his statement dated 9th March 1999 categorically stated that I attended the work and cleared the goods for export on the verbal instruction of Shri S.N. Ojha. He mentioned that when instructions were given to him by the Appellant he was along with him. He stated that I believe that similar instruction might have been given to Shri Joseph Kuok by Shri S.N. Ojha. In his further statement on 12th March 1999 when asked why the Superintendent, Mr. Kuok marked all the documents to Mr. Rajesh Bhasin to him, Lovkesh Sharma stated that I can presume safely that he was also instructed by Shri S.N. Ojha accordingly. Lovkesh Sharma was then ask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d given LEO for these 34 SBs? A.2 The SBs are marked to the Inspectors by the Superintendents depending on the workload for the inspection and his presence at the export shed. Regarding the 34 SBs Sh. Lovkesh Sharma told me that he was under instructions from the Assistant Commissioner Sh. S.N. Ojha to facilitate clearance of the goods and therefore, I marked the same to him. This was also confirmed verbally from the Assistant Commissioner Sh. S.N. Ojha. 33. The contention that the above statements were an afterthought or that they are unreliable and inconsistent is not borne out. Further, as observed by the Commissioner of Customs, there is sufficient corroboration by the fact that as many as 100 consignments were allowed to be cleared without proper verification. The Appellant has been unable to show that any relevant piece of evidence has been overlooked or that the appreciation of the evidence by the Commissioner or the CESTAT is perverse. 34. As regards the procedure followed, it is not the case of the Department that the EDI computer system had thrown up these discrepancies. The Department has been able to substantiate that the Appellant had given oral instructi ..... 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