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TMI Blog2018 (11) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... Penalty not imposable - appeal allowed - decided in favor of appellant. - Appeal No. C/52173-52177/2018-DB & C/52594/2018 - FINAL ORDER NO. 53253-53258/2018 - Dated:- 12-11-2018 - MR ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Shri Alok Barthwal, Advocate (Item No. 1 to 5) Shri Sameer Chakraborty, Sr. Advocate (Item No. 6) Shri Abhjit Biswas, Advocate Present for the Respondent: Shri Rakesh Kumar, D.R. ORDER Per: Bijay Kumar: All these 6 appeals arises out of common OIO No. 01/COMMR/CUS/IND/CAA/2017 dt. 24.05.2018 passed by Commissioner of CGST Central Excise, Indore. The impugned order emanates from SCN No. VIII(CUS)15-04/2014/Adj-I/15009 dated 12.8.2014 in which these appellants are co-noticee. The issue involved in this appeal is whether penalty under section 114 (i) and 114 (iii) of the Customs Act, 1962 is imposable upon the departmental officer namely Shri S. Chattaraj, Assistant Commissioner Customs, Shri Mangilal Chouhan, Superintendent (Now Retired), Shri Rajesh Purania (Inspector), Shri Govind Malviya (Superintendent), Shri Subhash Pandey (Inspector) and Shri Vinayak Joshi Supe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act with the said person. Further appellant, Shri Chattraj, attended the marriage ceremony of Kirit Shrimankar s son at Mumbai in January 2013 as guest and availed the flight tickets to and fro travel for self and his family and stayed with his family in a five-star hotel in Mumbai and that the entire trip and stay was financed by Kirit Shrimankar. It had allegedly come on record that the appellants used to be entertained in the guest house set up by the said alleged syndicate . In case of other Appellants it was alleged that they had facilitated fraudulent exports and further that the Inspectors viz Shri Rajesh Puarania (Appellant No. 4) and Shri Subhash Pandey (Appellant No. 1) had made and received some calls with Shri Kirit Shrimankar. The Appellants contested the charges of show cause notice on various grounds. 4. The adjudicating authority vide the impugned order besides confirmation of demand of exports benefit and imposition of penalty against Kirit Shrimankar and others, and also imposed penalty upon the present appellants. A penalty of ₹ 25,00,000/- on Shri Chattraj (Appellant No. 6) and of ₹ 10 Lakhs each on other Appellants (Appellant Nos. 1, 2, 3, 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice has accepted the same. Ld. Advocate further submits that in case of called back consignments under Shipping Bill No. 400614 and 400615 both dt. 18.05.2013, the Consulate General of India at Dubai had given a report that the value declared by the importer at Dubai was only Rs.US$ 11465.55 equivalent at ₹ 6,22,664/-,but this report was itself rejected by the DRI authorities and they redetermined the value of the subject export goods at ₹ 49,50,137/- which is nearly 8 times higher than value declared by the Dubai Importer. No evidence of export of like goods has been brought on record. Therefore, the redetermined value is itself conclusive evidence that no reliance can be placed upon the report of Consulate General, the ld. Sr. Advocate states that according to him there is no evidence of any wrongdoing on the part of Appellant, and hence no penalty is imposable. 7. Shri Alok Barthwal, ld. Counsel appearing for the other Appellants submits that the Appellants were working as per instructions given to them by their Seniors and also as per various instruction, Trade Notice etc. issued from time to time by the Department. As the exports were assessed provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons with Shri Kirt Shrimankar is evident from call data record and other evidence such as availing Guest House facility and stay at five Star Hotel during the marriage ceremony of Shrimankar s son by the noticee No. 6 (Shri Chattaraj), 9. After hearing both the sides we find that the Show Cause Notice and adjudicating authority in case of Shri S. Chattaraj has held him liable for penalty on the basis of telephonic conversation between him and Shri Kirit Shrimankar, attending marriage of Kirit Shrimankar s son at Mumbai and the expenses of hotel and travel being borne by Shri Kirit Shrimankar. However, we find that the said instances nowhere infer that Shri S. Chattaraj was in conspiracy with Shri Kirit Shrimankar towards exports of overvalued and sub standards goods. There is no transcript of phone calls made between these two to reach a conclusion that the said conversation was in order to cause fraudulent export. Our views are also based on Tribunal s Orders in case of M/s Shafeek P.K. V/s Commissioner of Customs - 2015 (325) E.L.T. 199 (T), the relevant extract of the order is as under: 11.3. Otherwise also, we find that the entire case of the Revenue rests upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner exercising his discretionary power confiscated the gold bar absolutely. Looking to the nature of the case, I do not find any illegality in the action of the ld. Adjudicating authority for absolute confiscation of the gold bars, therefore absolute confiscation is upheld. Since Shri Khemani Purushotam Mohandas was caught red handed having possession of smuggled gold penalty was rightly imposed upon him. Therefore the same is also not required any interference. As regard the penalties imposed on Shri Jitendra N. Jeswani and Shri Narendra P. Jeswani father and son duo, the only evidence found was frequent mobile calls between both the appellant and Shri Khemani Purushotam Mohandas. In this regard I observed that department could not produce details of conversion of mobile calls. Secondly, Shri Khemani Purushotam Mohandas referred to one Shri Ashok Bhojwani for talking on the mobile and he did not talk to both the Jeswanis. Department could not produce any evidence to establish that both the appellants Shri Jitendra N. Jeswani and Shri Narendra P. Jeswani were conspirator in the smuggling of goods. Though on the basis of telephone calls there is serious suspicion that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... views, when the allegations and instances against all the officers are same, in that case, the reasoning adopted by the adjudicating authority to impose penalty upon the Appellants is patently erroneous. Also, we find that in the show cause notice, Shri Ankit Mehta was accused of making payment to ₹ 750/- per consignment to the Inspectors. However, the adjudicating authority has himself discarded the said statement of Shri Ankit Mehta on the ground that the statement of Shri Mehta stands retracted by him and thus not reliable. In such circumstances, when the appellants are not accused of getting any illegal gratification or advantage from the alleged exporter, they cannot be held responsible for any alleged evasion of duty or causing fraudulent exports. Our views are also based upon the Tribunal order in case of CCU, New Delhi Vs. Hargovind Export 2003(158) ELT 496 (Tri, Del), CCU, New Delhi Vs MI Khan 2000 (120) ELT 542 (Tri) and orders relied upon by the Appellants. 10. In view of our above findings and discussion we hold that there is no reason to impose penalty upon the Appellants under Section 114 (i) and (iii) of the Customs Act. We at this stage want to make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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