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TMI Blog2018 (10) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... reference made by the assessing group about undervaluation, to the controlling officer. Issuing UO letters on their own without the knowledge of the Commissioner thereby to facilitate the importer to clear the goods showing lesser value than the prevailing market value caused unlawful pecuniary advantage - The UO letters issued by A1 to A3 were not part of their duty but created falsely to cheat the exchequer. No element of duty is found in issuing a misleading, false document under the capture UO letter. Hence, Section 155 (2) of the Customs Act have no relevance. Issuing UO letters contrary to Act, rules and Regulations containing falsehood does not attract Section 155 of the Act, to claim protection. Hence, the orders of the trial court dismissing the discharge petitions are liable to be confirmed. Criminal Revision Petitions are dismissed. - Crl.R.C(MD)Nos.437, 438, 439 and 440 of 2017 And Crl.M.P.Nos.4553,4555,4557 and 4562 of 2017 - - - Dated:- 20-9-2018 - Dr. G. Jayachandran J. For the Petitioners (In Crl.Rc (MD)Nos. 437 to 439 of 2018) : Mr.AR.L.Sundaresan, Senior Counsel for Mr.T.Sudhan Raj For the Petitioners (In Crl.RC(MD) No 440 of 2018) : Mr.B.Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sely issued U.O.Notes to the Assessment Officers, Customs House, Tuticorin to clear the imported cargo as per the under valuation declared by Shri. Hanif K.Thara (A4) and Shri. Asif H.Thara (A5) of M/s. Unik Traders, Bangaluru and thereby caused a wrongful loss of ₹ 92,24,730/- to the Department of Customs, Tuticorin and corresponding wrongful gain to themselves and to Shri.Hanif.K.Thara (A4) Shri.Asif. H.Thara (A5) of M/s. Unik Traders Bangaluru. The aforesaid acts committed by them constitute the offences punishable U/s.120(b) r/w.420 IPC and Section 13(2) r/w.13(1)(d) of Prevention of Corruption Act. 5. The fulcrum of the final report is that when the customs officials at assessment level found that the value declared by the importer namely M/s. Unik Traders in respect of Star Aniseeds was found to be lesser than the guideline value found available with the Directorate of Valuation (DOV) and National Information Data Base (NIDB), the matter was referred to CIIB which is responsible for monitoring Import and Export. In case of any suspicion in import or export, with the approval of the Commissioner of Special Investigation, the Investigation Branch (SIIB) have to conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onspiracy between them is baseless. The valuations of the goods were determined based on DOV prevailing at the relevant point of time, taking into consideration the guidelines under Section 14 of the customs Act and Rules 3, 10 and 12. The materials relied by the prosecution does not disclose the goods were under valued. The DATA either NIDB or DOV produced after long delay, were not available for the customs official at Tuticorin, when the Bills of Entry were cleared, the custom department never found any under valuation in the goods imported, it is the CBI, which is investigating the case alleges under valuation which is the statutory responsibility. Therefore, proper officer as defined under the customs Act and not the CBI police could investigate the alleged under valuation, based on vague information. 10.The investigation made is not fair and proper when seven persons shown as accused in the F.I.R., 7 of them are not prosecuted. Their names are found in column (2) as not sent for trial. Whereas the names of the accused 1 to 3 which are not in the F.I.R as shown as Accused. The discrimination in selecting the accused with ulterior motive is obviously seen. The 161 (3) Cr.P.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared value and revaluation will arise only if the department re apprise the transaction and establish the contemporaneous price of the goods import was higher than the declared price. When the prosecution has not filled any record to show the contemporaneous value of the goods was higher than the declared value, the charge sheet which is not supported by acceptable data, liable to fall. They never imported Star Aniseed from China. While so, reliance on a documents /Invoice of a company in China have no relevancy to allege the goods imported by the petitioner from Vietnam and Hongkong are under valued. 16. Heard the learned Senior Counsels appearing for the revision petitioners/accused and the learned Special Public Prosecutor appearing for CBI. 17. The counsels argued at length and relied upon several judgments and provisions of Customs act, Rules framed thereunder to emphasis that, it is the responsibility of the 'proper officer' as defined under Section 2 (3A) of the customs Act to assess the invoice value declared by the importers . At the first instance is the DC/AC of customs and Central Exercise Department. To exercise power under Section 28 AAA the proper of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a public servant by abusing their official position or by corrupt or illegal means are two distinct offences. For the rather conduct, CBI has authority to investigate. The plea of the revision petitioners by prosecuting than the CBI is discharging the function of a proper officer is baseless contention. 20.In this case, loss of ₹ 92,24,730/- is deducted in the investigation. Corresponding wrongful gain to the importer, pursuant to the alleged conspiracy between the importer and the officers of customs in the CIIB wing is made out. The prosecution is therefore sustainable. 21.The disputed fact whether the respective UO letters referred above sent by the accused A1 to A3 were issued with the knowledge of the Commissioner or can be decided only after trial. 22.From the statements of LW-1 Francis Xavier Raja, the NIDB Data used to compare the prevailing value of the goods imported and the declared value found in the invoice were handed over to the Investigating Officer. He has explained the DOV value at the relevant dates were higher than the declared value, but the importer has paid duty only as per the declared value. Thereby caused revenue loss to the tune of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niary advantage. 25.The three UO letters issued by A1 to A3 respectively are not issued as per the procedures. UO letters are not to be issued in respect of the matters relating to policy or revenue. The statement of LW-16 Santhanamarimuthu, Superintendent of Customs CIIB wing in his statement has stated that without the approval of the AC/DC, the Superintendents cannot send UO letter to other sections of the customs department or other departments. UO notes can be sent only on routine matters. 26.LW-18 Ajay Dikshit, Commissioner of Customs in his statement has said that UO letters, dated 09.11.2010, by A1 or the other 2 UO letters by A2 and A3 were sent without his approval. The matter relating to undervaluing B.E's of M/s.Unik traders were not brought to his notice by A1 to A3. 27.LW-19, Chandra Mohan Additional Commissioner has perused the files relating to the UO letters had pointed out that they were issued without his approval or knowledge. 28. The above stated incriminating materials indicates that the UO letters issued by A1 to A3 were not part of their duty but created falsely to cheat the exchequer. No element of duty is found in issuing a misleading, fals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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