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TMI Blog2016 (2) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... o the matter indicated that Sh. Gurkirpal Singh, Director of M/s Supreme-Casting Pvt. Ltd., Jalandhar, Sh. Ashok Kumar, partner of M/s ATM International, D-163, Focal Point, Jalandhar, Sh, Pavitar Singh, Chartered Accountant, 1, First Floor, Sehdev Market, Jalandhar and Sh. Vijay Madaan, H.No.1310, New, Durga Puri, Habowal Kalan, Ludhiana, Proprietor of M/s Speed Cargo Logistics Pvt. Ltd., Ludhiana and Sh. Satbir Singh s/o Sh. Lashkar Singh, 13, Aman Nagar, Jalandhar have floated this firm in the name of Sh.Satbir Singh, who was working as an assistant of Sh.Pavitar Singh, CA on monthly salary of ₹ 6000/-. 3. The business and residential premises of S/Sh.Gurkirpal Singh, Ashok Kumar, partner of M/s ATM International, Jalandhar and Sh.Pavitar Singh, CA were raided on 13/14.12.2000 by the officers of Anti-Smuggling Wing of Customs Commissionerate, Amritsar. As a result of search in the business premises of Sh.Pavitar Singh, CA files containing DEPB applications submitted to the office of Joint Director General of Foreign Trade, Ludhiana were recovered as also rubber stamps of M/s Megna Impex, Jalandhar in addition to several other incriminating records and other rubber st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranch) is only to examine the shipping bill presented before him as to find out whether valuation/classification/ description has been made properly or not. On the face of the shipping bill he has examined and found nothing is doubtful. Therefore, he signed the shipping bill. But he was not aware whether the examining team i.e. Appraiser below are doing any fraudulent activity while examining the goods and substituting the same. All these activities of fraudulent availment of excess DEPB benefit he came to know only at the time of investigation. Therefore, as the fraudulent document has not been signed by the appellant, therefore, he cannot be penalized in the proceedings. At the most disciplinary action would have been taken against the appellant by the Department in the departmental proceedings which has not been done by the Department as the appellant has already been by the retired. Therefore, he prayed that appellant be exonerated from the proceedings. 8. On the other hand, Ld. AR drew my attention to the various statements of the appellants and submits that after examining veracity of the statements made by the investigating team the Adjudicating authority has correctly im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ashok Kumar and Shri Gurkirpal Singh. It has also came on record that it was Shri Ashok Kumar who was managing all the affairs of the aforesaid firm M/s. Megna Impex. In his subsequent statement dated 16.4.2001, Shri Satbir Singh has deposed that Shri Ashok Kumar and Shri Gurkirpal Singh floated a firm in his name and they were actual beneficiary and both of them had knowledge about the business and financial position. The DEPB obtained by M/s. Megna Impex were being used/sold by Shri Ashok Kumar and Shri Gurkirpal Singh; that the blank cheques were being issued by him and were being given to Shri Ashok Kumar; that he was putting his signatures on all export related documents at the instance of Shri Ashok Kumar. Similarly, in his statement recorded on 18.4.2001, Shri Satbir Singh deposed that he had given 3 to 4 blank cheque books duly signed by him to Shri Ashok Kumar and one blank cheque book and some loose cheques to Shri. Gurkirpal Singh. There is no mention of the name of Shri Pavitar Singh in the said statement of Shri Satbir Singh except to the fact that he was an employee of Shri Pavitar Singh and Shri Pavitar Singh was engaged In the activity of getting I.E Code and expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue of export and for filing fraudulent DEPB scrip. 18. Apart from the above, we also note that the CBI, who has undertaken investigation into the fraud committed has given a clean chit to the appellants when it stand recorded by them in their charge sheet that on 2.1.2004 as under:- Investigation has established that Shri Pavitar Singh prepared requisite applications for issuance of DEPBs as Chartered Accountant on instructions of Shri Ashok Kumar @ Lucky and Shri Gurkirpai Singh but no criminal mensrea was substantiated against him during investigation. The above finding of CBI duly support the appellant's stand that he was working only in his professional capacity as Chartered Accountant and was not a party to the fraudulent activities of export. The sanction order passed by the Commissioner on 19.12.03, providing sanction of prosecution, in the said fraudulent activities, does not include the appellant's name. We also find support, for the conclusion arrived at by us in the preceding progress, from the assessment order passed by Income Tax authorities in the case of Shri Satbir Singh, Manager of M/s. Megna Impex. As per the said assessment order it st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined the case of Shri Pavitar Singh on the basis of statement recorded by the Adjudicating Authority in the impugned order in the case reported in 2012-TIOL-1269-CESTAT-DEL. Therefore, I am duty bound to follow the said judgment. In these circumstances, I hold that the Ld. Adjudicating Authority has fell in error in imposing penalty on the appellant. Therefore, penalty on Shri Pavitar Singh is set aside and consequently appeal of Shri Pavitar Singh is allowed. 12. With regard to the penalty on Shri A.K. Kaul (Appraiser) I find that signature on both the shipping bills namely crank shaft and timing shaft bears signature of Shri A.K. Kaul. Therefore, the allegation against Shri A.K. Kaul that he was actively involved in the fraudulent activity, therefore, leniency cannot be taken against him. In these terms, I uphold the penalties imposed by the Adjudicating authority on the appellant. Consequently, appeal filed by Shri A.K. Kaul are dismissed. 13. With regard to penalties imposed on Shri Sada Ram Dy. Commissioner. I find that role of Dy. Commissioner (A) Branch is only to verify the shipping bills which are presented before him. Admittedly, in this case shipping bills showi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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