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TMI Blog2024 (8) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... r, except statements which too not relatable, there is no documentary evidence to show said kickback of 40% to 60% drawback. It is found that Shri Pratik Bhansali has clearly denied the allegation in his first statement, thereafter, there was no need to again call him but he was repeatedly summoned and in the subsequent statement he stated that he was supposed to get 40% of the duty draw back. When there are two contradictory statements by one person, those statements cannot be relied upon. Moreover, when the appellant right from their reply to show cause notice denied the allegation, the adjudicating authority was supposed to cross-examine the witnesses, however, no cross-examination has been conducted. As regard the allegation of sharing 40% or 60% drawback by Shri Pratik Bhansali and Shri Zayd Chakkiwala , no documentary evidence was brought on record for any past incident that they have received any such sharing of the drawback, therefore, the penalties under Section 114(iii) and 114 AA was wrongly imposed. As regard Kaustubh Parikh, he is mere an employee of CHA, therefore, he has performed his duty on the instructions of his senior and it is also a proven fact that he has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that he was assured 40% share of duty drawback and hence, he overvalued the goods 1.3 As regard the appeal of Shri Zayd Chakkiwala, the fact is that Shri Harish Bokade, proprietor of M/s. Harish Fashion has stated in his statement that he was not aware of export procedure, that one Shri Namubhai Tukarm Patil introduced him to Shri Zayd Chakkiwala, that he had taken advice from Zayd Chakkiwala. It has also been observed that Shri Zayd Chakkiwala has admitted that the export documents were got prepared by him, that the value of the goods shown in the export invoices and packing list etc. were fixed by him with actual value of goods is Rs.50 to 65 only per piece. That shipping bills, E-Annex, Check list were prepared by CHA on his instructions, that the export material is overvalued to avail higher amounts of drawback, that he is to be beneficiary of 60% of drawback to be approved. 1.4 The penalty on Shri Kaustubh Parikh was imposed on the ground that he has also admitted in his statement that he has prepared the invoices and details of packing list, that he had provided soft copies of the invoices and packing list prepared by him at his office. 1.5. Being aggrieved by the Order- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Zayd Chakkiwala, Learned Consultant submits that the detailed submission given by the appellant Shri Zayd Chakkiwala before the Adjudicating Authority, but no finding on the said submission was given, he has merely reproduced the allegation as finding and imposed penalties. Shri Zayd Chakkiwala is not the exporter and has not filed any shipping bill. In his statement dated 05.07.2017, Shri Haresh Bokade, Proprietor of M/s. Haresh Fashion, has stated that he had procured the goods entered for export from Shri Sameerbhai of Surat. He had received the export order from Shri Ashok Mehta. He approached Shri Namu bhai for assistance in completing the export procedures. The exporter has admitted in his statement that he intended to claim higher drawback and he acted as per advice of Shri Namubhai of Surat. The appellant is nowhere named in this statement. However, in further statement dated 21.07.2017, it is recorded that Shri Namubhai was acting on the instructions of appellant. However, the officers never recorded statement of Shri Namubhai (whose details were provided by Shri Haresh Bokade in his statement dated 21.07.2017) nor any questions were asked to appellant about Shri Namubhai. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unaware of the intricacies and procedures involved in the Customs Clearances. He could not have known of correct valuation or consequences of over valuation. Irregularities committed by CHA M/s. United Safeway India Pvt Ltd of not checking the consignment, cannot be pinned at on an inexperienced employee such as the appellant simply working on the instruction of his employer without any market knowledge to be able to trace malafide intentions in the action of the other parties concern. The appellant is neither the exporter nor the custom broker, he is merely a co- noticee. He further submits that the appellant is merely a co-noticee , it appears that the impugned order penalized the exporter or the custom broker for Rs. 10 lakh while the appellant is penalized for a total amount of Rs. 25 Lakh which is arbitrarily whimsical to penalize the co-noticee more than an amount penalized on the exporter or the custom broker. He further submits that from the overall attempt to export, the appellant has not been benefitted or claimed any benefit, therefore, the penalties were wrongly imposed on him. 3. Shri A R Kanani, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates ..... X X X X Extracts X X X X X X X X Extracts X X X X
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