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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 ..... He was promoted to the grade of Assistant Commissioner on 29th February 1996 and thereafter to the grade of Deputy Commissioner on 12th November 2002. On 24th July 1998 he was posted as Assistant Commissioner (Export) at the Internal Container Depot (ICD), Tughlakabad and also Assistant Commissioner (Adjudication). He was in-charge of processing of the shipping bills filed for export of goods through the ICD. He also performed other functions allied and incidental thereto. 4. It is stated that the procedure for processing the shipping bills on the Customs EDI computer system was prescribed in Public Notice No. 8/97 dated 13th August 1997. It is further stated that in terms of the said public notice the data from the shipping bills as provided by the exporter, would be entered into the EDI system. The processing of the said shipping bills at the level of Assistant Commissioner was limited to the verification of online particulars already entered into the EDI system. It is sought to be suggested that at the stage of processing, neither are the original documents produced before the Assistant Commissioner nor are the goods brought within the customs area. 5. On 12th December 1998 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to disburse the balance amount of Rs. 3,54,63,360. From the disbursal of the aforementioned drawback amount to the different firms, it was noticed that the amount of drawback disbursed to one unit was transferred to other, which showed a clear nexus between the units. 8. 26 panchnamas were prepared from the inspection of the containers in the presence of some of the customs officials. The statements of several of them were recorded. Mr. Lovkesh Sharma tendered 6 statements on 4 different dates during recording of proceedings in the panchnama, i.e., on 12th January 1999, 18th January 1999, 10th March 1999 and 11th March 1999. He further tendered statements on 9th, 12th December 1999 and 15th March 1999. Mr. Joseph Kuok gave 4 statements on 3 different dates, i.e., 12th January 1999, 18th January 1999 and 13th February 1999 during recording of proceedings in the panchnama. He made further statements on 16th, 17th February 1999, 26th March 1999 and 26th August 1999. 9. On the basis of the above statements, a show cause notice ("SCN") was issued to the several parties including the Appellant on 3rd December 1999 proposing an imposition of penalty under Section 114 of the Act. The App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. 11. The CESTAT in the impugned order found that both Lovkesh Sharma and Joseph Kuok had been acting under the instructions of the Appellant and had permitted the consignments to be exported without examination. Consequently, the findings of the Commissioner of Customs in the order-in-original were upheld. 12. Ms. Meenakshi Arora, learned Senior counsel appearing for the Appellant, made the following submissions: (i) During the initial interrogation neither Lovkesh Sharma nor Joseph Kuok named the Appellant. However, in their statements tendered after two months after the search, in order to save themselves, they falsely implicated the Appellant. (ii) While Lovkesh Sharma, Zaki Anwar, Joseph Kuok and even J.P. Singh had been suspended by the Department, the Appellant was not. He was, in fact, promoted to the grade of Deputy Commissioner. (iii) The Central Bureau of Investigation ("CBI") registered an FIR on 1st June 1999 against Lovkesh Sharma and Joseph Kuok, the Custom House Agent and the exporter. However, the Appellant was not named in the chargesheet dated 29th April 1999. (iv) The finding of the Commissioner of Customs that the Appellant had been responsible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e redressal, had to attend to complaints and queries of the exporters on a regular basis. The inference that he was acting in collusion with Mr. Rajesh Kumar was perverse. Further, in the absence of the transcript of the alleged conversations, the data concerning the calls could not lead to any adverse inference. Despite their being 120 calls from J.P. Singh to Rajesh Kumar and 82 calls from Rajesh Kumar to J.P. Singh, they were both exonerated. (ix) The marking of shipping bills by the Appellant to Joseph on the relevant date was done as Mr. Tandon was not available as he was busy in other work. The marking was in bona fide discharge of his duty. The mere fact that the appeal of Satish Kumar and Anwar were also dismissed would not automatically mean that the Appellant's case should also fail since both Anwar and Gupta were accused in other cases and had been suspended even at the initial stage of the enquiry. On the other hand, the Commissioner of Customs having exonerated Joseph Kuok and CESTAT having exonerated J.P. Singh and R.K. Srivastava, the Appellant should also be exonerated. 13. In reply to the above submissions, Mr. Rahul Kaushik, learned Senior standing counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retracted statement by the noticee, it had to be shown that the initial statement was voluntary. Any statement obtained under inducement, threat, coercion or other improper means had to be rejected. At the same time, merely because a statement is retracted, it would not automatically lead to the inference that it was obtained involuntarily. The burden would shift to the maker of the statement to establish that improper means had been adopted for obtaining such statement. If the maker failed to establish the allegation of inducement, threat etc. the adjudicating authority would not proceed to decide the show cause notice on the sole basis of such statement but look for other corroborative evidence. 18. Subsequently, in Vinod Solanki v. Union of India (supra) the Supreme Court reiterated the above legal position and observed: "34. A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat etc. if the same is to be relied upon sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, the adjudicating authority would not rely solely on the retracted statement but would look for other independent corroboration. 22. The other aspect in the present case concerns the conduct of the officers of the Department and their role in the large scale fraud concerning the claim of duty drawback. The case explaining the legal position in this regard require to be briefly discussed. Vishnu Kumar v. Commissioner of Customs (supra), concerned the conduct of a sorting assistant at the post office. In the context of a charge against him of abetting the smuggling of dutiable goods under Section 112 of the Act, the Court observed that "knowledge and intention being state of mind, it may not be possible to prove them by way of direct evidence and they have to be primarily inferred from the act and conduct of the charged person, which need to be analysed in the light of attending facts and circumstances of the case." 23. In Sudhir Sharma v. Commissioner of Customs (supra) the conduct of the officers of the Department in a case of abetment of smuggling of silk was being examined. The Court discussed the applicable law and observed that the Appellant there was implicated not solel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Assistant Commissioner (Exports). Shri S.N. Ojha was the Assistant Commissioner (Export). Q.9. Was the samples shown to other Superintendent who had marked the documents to you? Ans.9 No, samples were directly shown Shri S.N. Ojha, Assistant Commissioner (Exports). Q.10. How many samples were shown to Sh. Ojha? Ans.10. One sample from each shipping bill wherever Superintendent had remarked for xxxxx. The samples to Assistant Commissioner. Q.11 Was the fact of showing samples to Assistant Commissioner recorded on the shipping bills or elsewhere? Ans.11 The fact of showing samples to Assistant Commissioner was recorded in the computer in departmental comments. Q.12 Who fed these departmental comments in the computer? Ans. 12 I myself fed the comments. Q.13 Were these comments also attested or checked by the Superintendent? Ans.13 Yes, these were checked while giving the order of "Let Export" by Superintendent. Q.14. What was the method of showing sample to Assistant Commissioner? Ans.14. The Assistant Commissioner had come to the export shed and the samples were shown in the Superintendent"s cabin where Sh. S.N. Ojha was sitting. 27. Three mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant who nevertheless asked him to clear the goods. 30. The statement of Joseph Kuok made on 17th February 1999 clearly implicated the Appellant. The following question and answer are relevant in this regard: "Q.1 You have seen the remark put by Sh. S.N. Ojha, Assistant Commissioner, Export on the Annexure "C" to the shipping bill No. 1038428 dated 21st November 1998 what you have to say about the said remark please explain. A.1 On 24th November 1998 the Assistant Commissioner Shri S.N. Ojha spoke to me on phone in the export shed that since Shri R.S. Tandon, Superintendent Export shed was busy I was to attend to the shipping bills and give "Let Export Order". He further said that he was giving the order in writing too." 31. Joseph Kuok was consistent in his stand in the subsequent statement made on 26th March 1999 when he gave the following answers: "Q.4 How all the 85 shipping bills came to you as Superintendent Exports? A.4 The CHA usually bunches the documents together and the same was presented at my table by Sh. Lovkesh Sharma. Q. 5 Why all the 85 shipping bills were marked to Sh. Lovkesh Sharma only? A.5 I recollect that Sh. Lovkesh Sharma requested me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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