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TMI Blog2008 (6) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... kh, purchased, on high seas sale basis, a large quantity of plastic moulding powders such as HDPE. LDPE, PVC etc. from M/s. M.K. Industries, M/s. Anant B. Timbadia Co., M/s. Petro Impex (I) Pvt. Ltd., M/s. Par Petrochem Pvt. Ltd. and M/s. Biswanath Industries Ltd. and cleared them free of customs duty against advance licences granted to them under actual user condition, under the Duty Entitlement Exemption Certificate (DEEC) Scheme. After clearance of the goods, the importer had unauthorisedly diverted the goods in the local market in violation of actual user condition contained in Notification 30/97-Cus., dated 1-4-1997 and the provisions of Chapter 7, Vol.-I Handbook of Procedures of Export Import Policy AM-1997-2002. Shri Virendra K. Gandhi, Shri Anant B. Timbadia, Shri Sharad M. Shah, Shri Sunil Agarwal, Shri K.B. Rai and Shri Pankaj Mehta of M/s. Rashmi Shipping Agency, CHA, had aided and abetted Shri Paresh Parekh in evasion of customs duty by financing/using forged supporting manufacturers' documents for effecting duty free clearances of the goods and were also monetarily benefited in the sale of goods in the local market, and thus rendered themselves liable to penal act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on retraction letters of the parties, has discarded all the supporting materials produced by the department to counter the retractions. Firstly, the retractions are nothing but an afterthought to wriggle out of a difficult situation and to evade the liability for the action of aiding and abetting in the offence. The other aspect which the Commissioner ought to have gone into is that the department had adduced corroborative evidence to the facts disclosed by those persons in their statements, It is a fact that Shri V.K. Gandhi had opened L/C for import of plastic granules in the name of other firms, viz, M/s. Biswanath Industries Ltd., M/s. Petro Impex (I) Ltd. and M/s. Par Petro Chem Pvt. Ltd. who had purportedly sold the material on high seas sale basis to the advance licence holder M/s. Kunal Overseas Ltd. However, everybody has not retracted their statements. The fact is that Shri Paresh Parekh, transporters, CHA, godownkeeper and others have not retracted statements. (They had corroborated the charges framed against the noticees). These statements which clearly describe the role of Shri V.K. Gandhi and others in the commission of the offence have been ignored by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March 1998. Hence the Commissioner's observation that it is impossible that the application with a forged name was a result of the conspiracy, is not correct. (v) The Commissioner has also given undue weightage to the retraction affidavits dated 25-1-1999 filed by Shri K.B. Rai and Shri Pankaj Mehta, partners of M/s. Rashmi Shipping Agency, CHA firm. However, the Commissioner (Adj.) has failed to appreciate the statements of Shri K.B. Rai made on 28-1-1999 and Shri Pankaj Mehta made on 25-1-1999, which were recorded on or after the date of affidavits, wherein they have reaffirmed their earlier submission as correct. They had involved Shri. V.K. Gandhi, Shri Anant Timbadia, Shri. Sharad Shah, themselves and others. In any case retractions made as an afterthought and made after long period cannot be treated as an evidence in favour of the respondents. That the retraction affidavits are inordinately delayed and hence required to be ignored is brought out by the fact that the statements of Shri Pankaj Mehta was recorded on 30-11-1998, 23-12-1998, 30-12-1998, 19-1-1998 and 25-1-1998. He has not retracted on the first available opportunity but only on 25-1-1998. Statements of Shri K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the amount was given to Shri Paresh Parekh (Bombay party) through their employees Shri J. R. Thakker. This evidence has been ignored by the Commissioner. (x) Shri J.R. Thakker in his statement dated 15-1-1999, has stated that he had given the cash amount to Shri Pankaj, brother of Shri Paresh Parekh and (two other persons of M/s. Kunal Overseas Ltd. This corroboration has also been ignored. (xi) Corroboration for payment of cash to Shri Paresh Parekh by Shri V. K. Gandhi is also available in the statement of Shri Babulal Keshavlal, supervisor of M/s. Rajesh Kumar Kantilal Co. dated 15-1-1999. It has been stated that they received the cash from Shri V.K. Gandhi in their Delhi office and the said amount was paid to Shri Paresh Parekh of M/s. Kunal Overseas Ltd. at the instructions of Shri Ajitbhai (Shri Ajit Toprani). This piece of independent evidence has also been rejected. (xii) For exonerating Shri Anant Timbadia, the Commissioner has pointed out that Rs. 30 lakhs were given to Shri Anant Timbadia through 7 different cheques/pay orders from the State Bank of India and Dena Bank. This has been observed by the Commissioner from the Bank's statement. In fact, the Bank's st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Suvidha Warehouse, Kalamboli, where the goods were stored as per evidence on record. None of these facts have been taken into account by the Commissioner. The Commissioner has observed that the collection of cash and giving of the drafts by Shri Ajit Toprani was not corroborated by bank statements. It is not necessary that the cash should have been withdrawn from the same bank account. It could have been drawn from any other account or any other party concerned in this case. All bank statements of all the parties have not been made available. In view of this, the Commissioner's observation is not correct. (xvii) M/s. Rashmi Shipping Agency, CHA, has acted in connivance with Shri V. K. Gandhi, Shri Anant Timbadia and Shri Paresh Parekh and have knowingly aided and abetted in the evasion of customs duty to the tune of Rs. 9.7 crores. The statements of both the partners of the firm reveal the conspiracy, the procedure and the methodology adopted by them. They have also shown their own involvement in the evasion of customs duty. Their retraction is only an afterthought. Even after the retraction, in their further statements, they have confirmed what has been stated earlier was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case it was proper on the part of the adjudicating authority to exonerate the other noticees in the case merely relying on the retraction of their statements and whether the adjudicating authority has gone beyond the purview of the adjudicating proceedings by ordering refund of duty which is a separate procedure under the Customs Act, 1962? (ii) Whether, after taking into consideration the facts stated above, the order of the Commissioner of Customs (Adj.), Mumbai is correct, legal and proper? and (iii) Whether, by an order passed under Section 129B of the Customs Act, 1962, the Tribunal should modify the said order and hold all the persons and companies mentioned above as involved, be liable to penal action under Section 112(a) and 112(b) or 114A of the Customs Act, 1962 ? or (iv) Pass such other order, as the Hon'ble Tribunal may deem fit and proper." 6. The Revenue does not challenge the Commissioner's order on the ground that he has not recorded any finding on the contravention of the provisions of Section 111(o) of the Customs Act by the importer, which contravention was alleged in the show cause notice on the basis that the import ..... X X X X Extracts X X X X X X X X Extracts X X X X
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