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TMI Blog2015 (11) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... to Balbir Singh, Appraise Shri B S Chauhan would give examination reports as desired by them . At the same time the fact is that Shri GS Kohli and Shri R S Singh themselves never discussed any issue with Shri Chauhan. Therefore as held by the adjudicating authority, the next logical step for investigation shoul have been to examine Shri R.S. Singh and Shri Balbir Singh. But this was not done. More so when the Department did not examine Balbir Singh who is supposed to have met B S Chauhan. Therefore the statement of Shri GS Kohli is beyond secondary evidence and cannot be relied upon in the face of judicial pronouncements discussed in paras above. In the facts and circumstances the allegation against Shri BS Chauhan is based merely on hearsay evidence in the form of a statement dated 08.08 1995 of Shri GS Kohli. - case established by Revenue does not even meet the standards of proof in a civil case. The case is full of flaws. It is not explained why for many years Revenue did not get the handwriting of the accused verified by the handwriting expert. This is especially so when Shri GS Kohli admittedly forged the signatures of all other agencies such as banks, steamer agents, RBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Respondent ORDER Per : P.S. Pruthi Revenue is in appeal against orders in original No. 40/2011 dated 30/4/2011, No. 41/2011 dated 28/4/2011 and No. 42/2011 dated 29/4/2011. 2. Cross objections are also filed by Shri. B.S. Chauhan in respect of Appeal No. C/660/11-MUM, in respect of Order in original No. 40/2011. 3. Investigation by Customs revealed that one Gurmit Singh Kohli floated various companies and proprietary concerns. He fabricated and forged documents relating to export of goods without actual physical export thereof and in this manner fraudulently claimed drawback of huge amount. He filed Shipping Bills with bogus IEC Code, bogus RBI Code, made forged Bill of Lading and bank attested invoices, forged signatures of officers of preventive department on export promotion (EP) copies of shipping bills and also examination reports were obtained on the shipping bills without carting the goods and without exporting any goods. In this manner he created companies and claimed drawback in the name of M/s. GSK Exports, M/s. ATA Industrial enterprises and M/s. All Export. M/s. All Exports, and M/s. GSK Exports claimed drawback at Nhava Sheva port and M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1 In his statement Shri. Gurmit Singh Kohli stated that he was proprietor of M/s. ATA Industrial Enterprises, In January 1995 he started a proprietary firm by the name of M/s. All Exports. He admitted to have received drawback without making any export in respect of companies floated by him. He also stated that he was getting the drawback with the help of the officers and staff and distributed some amounts to them. Further that Shri. Ramesh Singh(Shri. R. Singh) of Adarsh Clearing and Forwarding Agency had told him that Shri. B.S. Chauhan, Dock A.O. was ready to give examination report on the drawback shipping bills without carting the goods for shipment. Shri. Chauhan was to charge 25% of the drawback amount for giving the examination report and out of charge. For this purpose he sent Shri. Balbir Singh, an employee of Shri. Ramesh Singh to the Appraiser Shri. Chauhan. It was Shri. Chauhan who guided them to prepare documents, float new company(M/s. All Export), that is how the modus operandi was carried out, 25% of the drawback amount was taken by Shri. Chauhan, the drawback cheques were obtained after paying the officers and staff in the drawback department. He prepared all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d he might have tallied shipping bills by relying upon the particulars of the drawback claim on the export promotion copy of the shipping bill. 3.4 Consequent to the investigations, show cause notices were issued to Shri. Gurmit Singh Kohli, Shri. Balbir Singh, Shri. Qureshi of the Crown Shipping Agency, Shri. Manohar Bhadeka of PAL India Shipping Agency, Shri. Paresh Kanthariya, Ramesh Singh and also to Shri. BS Chauhan, Shri. Abhay Desai and Shri. Harsh Srivastava all Appraising Officers and Shri. Rajesh Pamnani, Tally Clerk. The Commissioner confirmed the demand of drawback already paid, rejected the claim of drawback in respect of shipping bills for which drawback was not sanctioned. The goods were held to be liable to confiscation. However in the absence of goods no order was passed for confiscation. Imposed penalty on Shri. Gurmit Singh Kohli and Shri. Ramesh Singh. However he dropped penalties on Shri. Balbir Singh, Shri. Qureshi, Shri. Manohar Bhadeka, Shri. Paresh, Shri. BS Chauhan, Shri. Desai, Shri. Srivastava and Shri. Pamnani. 4. Revenue found fault with the adjudication order in not relying on the statement of Shri. Gurmit Singh Kohli admitting the whole modus o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T A66]. On the charge against Shri. Rajesh Pamnani tally sheet cleark, it was stated that Shri. Pamnani was not known to Shri. Kohli. Allegation of payment made to Shri. Pamnani per shipping bill is only based on hearsay evidence. Further the standing order relied upon by the department does not state that the drawback claim is to be matched with the duplicate copy of shipping bill with drawback copy. Learned Counsel for Shri. Ajay Desai in appeal No. C/644/2011 stated that the adjudicating authority dropped penal action on the ground that the signatures of Shri. Desai are found to be forged as revealed in the investigation undertaken by CBI. Therefore the allegation on the part of appellant does not survive. He reiterated the findings of the adjudicating authority. He relied upon Commissioner of Customs, New Delhi Versus M.I. Khan[ 2000(120) ELT 542(T)] [2007(217)ELT 592(T)] G.H. Industries Versus Collector of Central Excise, Ahmedabad [1997(94) ELT 483(T)] 8. We have carefully considered the facts and submissions 9. Learned counsel for the respondent Shri Chauhan made a preliminary objection that the authorisation under Section 129(D) is filed by the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e magistrate at the time of remand. He only retracted his statement later, not to the officers who recorded the statement at Agra but to the Collector at Kanpur. In these circumstances the retraction was not accepted by the Court. 10.1 We may now examine the facts of the case before us in the light of judgements discussed above. Initially Shri B S Chauhan admitted that the signatures on the shipping bills bearing examination reports were his. He also stated that he had given the examination report on the basis of goods shown to him by the CHA but denied having received any money. It is indeed strange that although the Customs investigating agency had specimens of handwriting when the statements of Shri Chauhan were recorded in March April 96 there is no evidence that the handwriting experts opinion was taken at that stage. If it was taken the same was not made available to Shri Chauhan who requested for it vide his letter dated 05.03.07. The case of the department is based on the statement of Shri GS Kohli. He deposed that Shri R S Singh (the employer of Shri Balbir Singh) had told to Shri GS Kohli that according to Balbir Singh, Appraise Shri B S Chauhan would give examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri BS Chauhan. The Commissioner has come to a reasonable conclusion that, even though Shri BS Chauhan had agreed initially that the examination report was signed by him, he(Commissioner) viewed that if anyones handwriting and signatures are forged, then on seeing it for the first time that during investigation he or she may assume it to be his own. The Commissioner therefore correctly agreed with Shri BS Chauhan s explanation. 10.3 The Commissioner goes on to explain that the original and duplicate copies of the shipping bills were not available even in the year 1995 when the case was investigated by the CIU Custom House. In the case of drawback, the examination report was written on the duplicate copy of the shipping bill with carbon copy of the report on the drawback (triplicate) copy and EP copy of the shipping bills. It is a fact that the reports, initials and signatures on the shipping bills found on drawback copy were verified by the GEQD Hyderabad as discussed in detail in the chargesheet dated 24.12. 2004 filed by the CBI. Since the documents which were verified by the GEQD were supposed to be on the triplicate copy of the shipping bill, it would not have been a differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Order as below 6.11 I find that penalty has been proposed on Sh. Rajesh Parnnani4,. Tally Sheet Clerk u/s. 114(iii) of the C.A. 1962, under para 48(ix) of the SCN, in as much as he failed to tally the triplicate (Drawback) Shipping bill copy with the duplicate shipping bill or the particulars thereof entered in the matching register. He relied upon E.P. Copy instead of duplicate copy of the Shipping Bill for tallying the same which was in contravention of standing instructions issued under S.O. No. 4 of 1989(RUD at Sr. No. 41 of the list of the documents of the SCN). In this regard it is observed that as per Part C of the said Standing Order Tally Sheet Clerk was required to enter the details of the Drawback claims as per the claim papers forwarded to him by the L.D. Clerk of the Drawback section. As per the Standing instructions there was no obligation and prescribed procedure for the Tally Sheet Clerk to verify Drawblack claims with the duplicate copy of the Shipping Bills. The said stnaind The said Standing Order prescribed the detail procedure for processing of the Drawback claims and the role of Tally Sheet Clerk was confined to the Data Entry in a specified column of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that confession purported to have been made before an authority requires closer scrutiny and there should be corroboration of such confessions from independent sources. We find that Shri Balbir Singh was not even examined during investigation. Finding his guilty without even an opportunity of examination is not sustainable in law. Therefore, the department has not proved the case with any degree of certaint. We hold that penalty cannot be imposed on Shri. Balbir Singh. 10.8 Both Shri M. I. Quereshi of M/s Crown Shipping Agency and Shri Manohar Badheka of Pal India Shipping Agency have been charged with filing the impugned Shipping Bills without verification of the authority and authenticity of the documents for monetary consideration. We find that Sh. Quershi in his statement dated 1.7.96 stated that the signatures and initials on the impugned s/bills appeared to be of his, however, he further stated that he would verify from the job register whether these were handled by them. In his later statement dated 14.11.96 recorded by the CIU, he stated that after going through the records, he finds that these S/Bills were not pertaining to them. He further stated that the signatur ..... 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