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TMI Blog2018 (6) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... untant, had given a solvency certificate without verifying the documents for the purpose of issue of advance licence and his client M/s. Spectrum Fabrics has defrauded the Government by fraudulently obtaining the advance licence. Shri Sudesh D. Nanaware was imposed penalty under Section 112(a) on the ground that he being a consultant for obtaining the advance licence and also to arrange the sale of the advance licence. Therefore, the entire modus operandi of the fraud was created by these two appellants. 2. Shri Mithil Dave, learned counsel appearing on behalf of Shri Mahesh P. Patel, submits that the appellant has provided solvency certificate in respect of partners of M/s. Spectrum Fabrics in whose favour the Royalty Co-operative Bank has also given the solvency certificate. Therefore, it is not correct that the appellant has provided the certificate without any basis. 2.1 None appeared on behalf of Shri Sudesh D. Nanaware. 3. Shri Chatru Singh/Ms. Trupti Chavan, learned ARs appearing on behalf of the Revenue with respect to the two appeals filed by Shri Mahesh P. Patel and Shri Sudesh D. Nanaware, reiterates the finding of the impugned order. Ms. Trupti Chavan submits that bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the documents produced before him by Shri Yogesh Chalthanwala. It was also claimed that in the statement dated 12.6.2003 of Shri Mahesh P. Patel under Sectoin 108 of the Custom Act, 1962, "Certificates were issued without verifying the correctness of books of revenue" was written by the officers in place of " certificates were issued after proper verification of documents and records". I find that vide submissions made through letter dated 21.3.2007, the noticee is trying to retract his statement made in the year 2003. For four long years, Shri Mahesh Patel had not retracted the content of his statement which stands as admitted facts. I therefore, consider the retraction after 4 years an after thought. (iii) It was further claimed by Shri Mithil Dave that the advance licenses were issued in the name of Mis Spectrum Fabrics and not in the name of Shri Mahesh Patel and therefore, it is the company which is accountable. They have quoted various judgments to support the claim. I consider each one of them - (a) In the case of M/s. Pactil Electronics Pvt Ltd Vs Collector of Central Excise, Bombay-Il cited in 1987(28) ELT 315 (Tribunal), it was held that for Irregularities and ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Mis M.M. Raikhanna (2005 (186) ELT 322), CCE Vs Shal Dalitchand kapoor chand & co. ( 1989(41) EL T 167), Shri Kaigaontar & ors V s Gold Control Adm ( 1986 (23) EL T 523 (1)), Smt Vidya wati Vs State ( 1988(37)ELT 341(del)) and Laxmi Packaging (P) Ltd (1998(98)ELT 91(T)). I find that in the case of M.M. Raikhanna it was held by the Hon'ble tribunal that penalty on a person is not sustainable in the wake of no evidence produced to show that the advance licence would not be used in the manufacture of export goods. The ratio of this case is not applicable in the present case because herein there is an 'admitted' evidence of Shri Mahesh Patel that he had not verified the documents before giving the export performance certificates. Thus, the allegation of 'no evidence' by the noticee doesn't survive. I also find that the rest of the cases are either not relevant to the subject case or deals with cases wherein there is penalty and confiscation ordered in cases of lack of evidence against the appellants. As discussed herein above, the ratio of these cases are not applicable since the subject case matter. (iv) After considering the charges in the Show Cause Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was pre-decided by him and Shri .Jatinbhai Pancholi that he (Shri Sudesh Nanaware) would do consultancy work for issue of Advance Licenses in the name of M/s. Spectrum Fabrics, Surat, and Shri latin Pancholi would import duty-free yam andlor fabrics on the basis of the said ,Advance Licenses and then sell it in the open market without payment of appropriate Customs duties leviable thereon; that, he actively participated in all these activities and got issued Advance Licenses in the name of M/s. Spectrum Fabrics, Surat; that he had also done consultancy work for the issue of at least fifteen Advance Licenses in the name of M/s. Harihar Fiber, a company owned by Shri Jatin Pancholi. (ii) I have considered the detailed submissions made by the consultant on behalf of Shri Nanaware mentioned in the para 16 above of this order. The submissions have nowhere denied that Shri Nanaware was aware of the whole modus which was (as per his admission in the statement dated 20.9.2004) planned by Shri Nanaware and Shri Jatin Pancholi. To quote the portion of statement "I (Nanaware) clarify that it was a pre-decided plan to make a duty theft, by way of making duty free import on the basis of ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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