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TMI Blog2016 (2) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... resistibly conclude that Revenue has very successfully proved its case and oblique motive of the appellant enriched him at the cost of Revenue. Therefore all the appeals are liable to be dismissed. That is ordered accordingly. - Decided against the appellants. Regarding serious lapse of the Officers of Customs and DRI - Held that:- The wheels of Justice may appear to grind slowly but it is the duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless. Hence, it is left to the CBE&C to deal the matter with the DG (Vigilance), CBEC and make the nation corruption free. - C/182/08, C/183/08, C/177/08, C/181/08, C/179/08m, C/180/08, C/178/08, C/187/08, C/184/08, C/188/08, C/186/08, C/185/08 - Final Order Nos. 40200-40211 / 2016 - Dated:- 15-2-2016 - Hon ble Shri D. N. Panda, Judicial Member And Hon ble Shri R. Periasami, Technical Member For the Appellant : Shri Hari Radhakrishnan, Advocate For the Respondent : Shri B. Balamurugan, AC (AR) ORDER Per D. N. Panda In pursuance of the direction of the Hon ble High court of Madras in CMA No. 421/2013 disposed on 7.3.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 26.11.2007 25,00,000/- 3. C/177/08 6875/07 dt. 16.11.2007 25,00,000/- 4. C/181/08 6932/07 dt. 26.11.2007 12,50,000/- 5. C/179/08 6930/07 dt. 26.11.2007 15,00,000/- 6. C/180/08 6931/07 dt. 26.11.2007 10,00,000/- 7. C/178/08 6876/07 dt. 16.11.2007 5,00,000/- 8. C/187/08 6947/07 dt. 30.11.2007 5,00,000/- 9. C/184/08 6944/07 dt. 30.11.2007 75,000/- 10. C/188/08 6948/07 dt. 30.11.2007 2,00,000/- 11. C/186/08 6946/07 dt. 30.11.2007 75,000/- 12. C/185/08 6945/07 dt.30.11.07 1,50,000/- 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aand his statement was recorded by investigation u/s 108 of Customs Act, 1962 on 17.11.2004. That revealed that he was the Proprietor of M/s. Pankaj Impex having office at No.1, 6th floor, Alsa Towers, P.H.Road, Kilpauk, Chennai-10 and was mastermind behind the deal of the false, forged, fake and fabricated TRAs with DEPB scrips mentioned therein. Those were supplied to him by the appellant at a very low price. When premise of the appellant was searched, he was absent and did not cooperate with investigating agency thereafter evading summons issued by that agency. 5.4 Sri Lohiya further stated in his statement that he was trading in REP/DEPB scrips in the name of M/s. Sashi Trading Corporation from No.83, NSC Bose Road, Chennai 600 001and closing that concern, he started Pankaj Impex in the year 1996. He had also another firm in the name of M/s. Prabha International with his wife as Proprietrix thereof. He was also using his brother-in-laws concern viz. PI Trading Corporation to trade the DEPB scrips. He got IE code for both firms and was purchasing DEPB scrips from the appellant. 5.5 Investigation gathered evidence suggesting that the impugned TRAs were not at all issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Nhava Sheva, had access to DEPB register, had colluded with Sri Lohiya to hatch conspiracy against Revenue divulging the details of DEPB scrips to him. Therefore, appellant is not liable to any penalty under law. Further, Sri Khan having been made scot-free, he should be brought to record for discovery of truth. 6.5 Appellant cannot be said to be mastermind of the team who made the alleged fraud following the ratio laid down in M/s. Geogeress Vs. Commissioner of Customs 2003 (151) ELT 336 [ICI India Ltd. Vs. CC, Calcutta 2003 (151) ELT 336]. Since there is no finding as to the collusion of the appellant with any person for forging and issuing DEPB scripss to evade duty, learned Commissioner manifestly erred in holding that the appellant was absconding and penalized him unlawfully although he was prepared to participate in the enquiry. Investigating authority for no reason insisted appellant to go to Chennai to participate in investigation. Complaint filed against appellant before the Magistrate Court is vexatious. Therefore, whole proceeding made violating principles of natural justice is void. 6.6 The cases of the appellant have been dealt very casually and in a cursory m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y liability were fake, forged and fabricated causing jeopardy to the interest of Revenue and whether the appellant committed any act in this regard to defraud Revenue and incurred liability u/s 112(a) of the Customs Act, 1962. 8.3 Investigation gathered evidence demonstrating that the impugned TRAs were not at all issued by Mumbai Customs to Chennai Custom House. Rather those were produced by Customs House Agents (CHA) in sealed cover to Chennai customs and basing on such TRAs, imports made at the Chennai port were cleared duty free. Letter dated 9.8.2005 of Commissioner of Customs; Chennai (Sea port) is testimony of the fact of submission of TRA by CHAs in Customs House, Chennai without that being received from Navsheva Customs, Mumbai. Those were false, fake, forged and fabricated and not at all genuine for the reason that the owners of the DEPB scrips mentioned therein had never transferred the same to the importers of Chennai. Evidence on record also exhibited that the DEPB scrips registered in the port of export i.e, Jawaharlal Nehru Port, Nhava Sheva, Mumbai were transferred by the owners thereof to different transferees and those were used in different ports. Further, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give reason to claim relief against fraud. In the case of Commissioner of Customs, Kandlav. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.) it has been held that by fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill-will towards the other is immaterial. Fraud in volves two elements, deceit and injury to the deceived. 9.2 Undue advantage obtained by the deceiver will almost always cause 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 anothers loss. It is a cheating intended to get an advantage. (See :S.P. Changalvaraya Naidu v.Jagannath [1994 (1) SCC 1 : AIR 1994 S.C. 853]. It is said to be made when it appears that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly and carelessly whether it be true or false [Ref : RoshanDeenv.PreetiLal [(2002) 1 SCC 100], Ram Preeti Yadavv. U.P. Board of High School and Intermediate Education [(2003) 8 SCC 311], Ram Chandra Singhs case (supra) and Ashok Leyland Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ullifies everything for which plea of time bar is untenable following the ratio laid down by Apex Court in the case of CC. v. Candid Enterprises - 2001 (130) E.L.T. 404 (S.C.). Non est instruments at all times are void and void instrument in the eyes of law are no instruments. Unlawful gain is thus debarred. 9.7 Fraud and justice do not dwell together for which penal provisions are enacted to eradicate evils of defrauding Revenue which is anti-social activity adversely affecting public revenue. Such provisions are construed in the manner which curbs the mischief, promote their object, prevent their subtle evasion and foil their artful circumvention. Thus construed, the term fraud within the meaning of these penal provisions is wide enough to take in its fold any one or series of unlawful acts committed or omissions made. An act of fraud on Revenue is always viewed seriously. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descripstive of human conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant nor Revenue proved its case for which penalty under section 112(a) of the Customs Act, 1962 is not imposable. It may be stated that Revenue need not prove its case with mathematical precision. Appellant perpetuated fraud against Revenue knowing fully well that the scrips sold by him under the cover of TRA shall be used by importers for duty free import and that shall cause subterfuge to Revenue. Provision of section 112(a) brings an offender to its fold, who in relation to any goods commits or omits any act rendering that confiscable are abets to do so. Appellant not only committed the offence but also abetted the commitment thereof for which he is liable to penalty u/s 112(a) of the Customs Act, 1962. 11.2 Appellant also contended that he shall be benefited by the judgment of the Hon ble High Court of Gujarat in the case of Commissioner of Customs Vs. Sanjay Agarwal 2011 (269) ELT 153 (Guj.). It may be stated that the said judgment was delivered in the context of role of a broker who organized purchase of DEPB scrips by an importer. But present case is a case of seller of the fake TRAs covering the DEPB scrips mentioned therein, who knowingly sold the same malafide to defr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the appellant during search makes the adjudication fatal is of no avail when surrounding circumstances and cogent evidence on record suggest involvement of the appellant in commitment of the offence against Revenue. 11.7 The last contention of the appellant was that DGFT is the only authority to deal with the forgery of DEPB scrips if any and Customs Authority has no power to deal with the same does not find support in law for the reason that the goods in question is confiscable under section 111 of the Customs Act, 1962 by customs authority. Once section 111 of the Customs Act, 1962 operates, section 112(a) of the said Act comes into play on the facts and circumstances of the case. Law is well settled that power vested on the Customs Authority cannot be taken away by any presumption. Hon ble supreme Court in the case of Sheshank Sea Foods Pvt. Ltd. Vs. Union of India 1996 (88) ELT 626 (SC) has held that the EXIM Policy or Handbook of Procedure has neither taken away nor abridged any power of the customs authorities or prohibited them from investigating into any violation of law under customs Act, 1962. Therefore, customs authorities cannot be denuded of their power without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 241 (S.C.). Thus, the adjudications were not time-barred and Section 28 of the Customs Act, 1962 was rightly invoked by the Adjudicating Authority in view of fraud committed against Revenue. 12.4 Upholding the decision of the Tribunal in the case of R.S. Trade Link v. CC New Delhi 2010 (255) ELT 572 (Tri.-Del.), the Hon ble High Court of Delhi has held in the case of Rahuljee Company Ltd. v. CC New Delhi 2011 (267) ELT 313 (Del.) as follows :- 15. We do not find any illegality in the reasoning recorded by the Tribunal in this regard which is as under:- 6.1.1.As regards the duty liability, since there is no dispute about the fact that the advance license against which duty fee imports of copper/brass scrap have been made by these importers, are forged and had never been issued by DGFT, in view of - (a) Hon ble Madras High Courts judgment in case of East West Exporters v. AC, Customs reported in 1993 (68) E.L.T. 319 (Mad.) (b)Hon ble Calcutta High Courts judgment in case of ICI India Limited v. CC, Calcutta reported in 2005 (184) E.L.T. 339 (Cal.), the SLP to Hon ble Supreme Court against which has been dismissed vide order reported in 2005 (187) E.L.T. A31(S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to establish that he made enquiry and took requisite precautions to find out about the genuineness of the SIL which he was purchasing. If he has not done that, consequences have to follow. These aspects do not appear to have been considered by the CESTAT in coming to the abrupt conclusion that even if one or all the respondents had knowledge that the SIL was forged or fake that was not sufficient to hold that there was no omission of commission on his part so as to render silver or gold liable for confiscation. 28. As noted above, SILs were not genuine documents and were forged. Since fraud was involved, in the eye of law such documents had no existence. Since the documents have been established to be forged or fake, obviously fraud was involved and that was sufficient to extend the period of limitation 16. In view of the above discussion, we do not find any infirmity or perversity in the findings of the learned Tribunal. Consequently, the question as framed is answered in the affirmative in favour of the Department and against the appellants. [Emphasis supplied] CONCLUSION 13.1 Enactments like Customs Act 1962, and Customs Tariff Act 1975, are not merely taxing ..... 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