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TMI Blog2024 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... s apparent that the petitioners and the other co-noticees have not complied with the same. On the contrary, they have committed fraud and forged the Forms which is found during the course of investigation as per the concurrent findings of fact arrived at by the three Authorities below. In such circumstances it is opined that the respondent-Authorities have rightly rejected the rebate claim of the petitioner and no interference is called for. Levy of penalty - HELD THAT:- In the show-cause notice as contemplated under Section 11A of the Act, time period is prescribed as five years from the date of knowledge. However, in the facts of the case, as the original documents were lying with the Court of Sessions and the reminders were sent which were provided by the respondent-Authorities in 2008 to the Police Authorities for investigation and the same were not made available till 2014, show-cause notice was thereafter issued in 2014 cannot be said to be beyond the period of limitation. However, the petitioner has never raised the issue of limitation before the Adjudicating Authority nor the Adjudicating Authority have therefore had any occasion to deal with such a contention raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted the investigation which resulted into the tentative conclusion that the petitioners and other co-accused persons had indulged into tampering the documents like shipping bills, etc. and in creation of forged statutory documents like ARE-I Form. The investigation was extended to recording of the statements of various persons connected with the submissions of documents and Form ARE-I for rebate purpose as under : a) Statement dated 4.1.2005 of Shri Manibhai Atmaram Patel, Legal Adviser and Authorised Signatory of M/s Gomti Exports. He inter alia reportedly stated that he had obtained ARE-1 Nos. 01/RI/04-05, 02/RI/04-05, 03/RI/04-05 04/RI/04-05 all dated 14.4.2004 from Range-III, Division-I, Central Excise, Surat-I and made entry in respect thereof in the ARE-1 register of the Range and obtained signature of the Range Officers on the said four copies (except original and duplicate copy) of ARE-1s. He further deposed that he had prepared rebate claim applications and submitted the same to the Central Excise Division-I, Surat-I on 23.8.2004 alongwith shipping documents, duly attested by Shri Vivek Tulsian. He further deposed that he had made corrections in the said ARE-ls regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further deposed that the manual amendments done in their aforesaid 4 shipping bills regarding ARE-1 No. and date were forged and not authenticated by any Customs Officers. d) Statement dated 28.2.2006 of Shri Manibhai Patel. He did not agree with the statement of Shri Vivek Tulsian and deposed that he had made corrections/alterations in the ARE-1 No. and date on the face of the shipping bills, whereas the corrections/alterations in original and duplicate ARE-1s were made by Shri Kuchubhai in his presence and that all these alterations/corrections were made in the office of Shri Kuchubhai. 3.3. It appears that thereafter by letter dated 12.07.2005, the Assistant Commissioner of Customs, Nhava Sheva informed that the manual correction of ARE-I or any other changes on EDI shipping bills are not allowed and cannot be done along with a report of the two Superintendents of Customs namely Shri S.P.S. Hooda and Shri Anvar Zaidi wherein, they have to put the signature on the shipping bills under questions where ARE-I numbers were changed and both of them categorically stated that their signatures are forged on the shipping bills and such type of changes i.e. manual correction of ARE-I nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Bank Realisation Certificate. Reliance was also placed upon the affidavit of the persons whose statements were recorded during the course of investigation to retract and challenge the veracity of such statements. 3.8. The Adjudicating Authority thereafter passed the Order-in-Original rejecting the rebate claim and also imposed the penalties on the petitioners of amount equivalent to total amount of four rebate claims on each of them separately. The Adjudicating Authority also imposed personal penalties on the proprietors and partners of the petitioners and other co-noticees. 3.9. Being aggrieved, the petitioners preferred an Appeal before the Commissioner (Appeals) under Section 35 of the Act contending that the Order-in-Original is contrary to the provisions of the Act and the Rules and the Adjudicating Authority has committed a grave error while denying the cross-examination of the co-noticees though the specific stand was taken by the petitioners. 3.10. It was also submitted by the petitioners before the Appellate Authority that the Adjudicating Authority has failed to appreciate that the alleged corrections/alterations do not affect or dilute the fact about the actual exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /RI/04-05, 2/RI/04-05, 3/51/04-05 B 4/RI/04-05 all dated 14.04.2004 fraudulently from the jurisdictional Range Office i.e. Range-III, Division-I, Surat-I. Towards this, they tampered with the ARE-1 No. 441, 442, 443 444 all dated 11.05.04 by putting white fluid on the same and allotting ARE-1 No. 1/51/04-05, 2/RI/04-05, 3/R1/04-05 4/R1/04-05. They presented such fraudulent documents like tampered ARE-is and Shipping Bills before Central Excise Authority to avail the rebate of Central Excise Duty amounting to Rs. 9,86,303 fraudulently. The ARE-1s produced by them for the said purpose are not the genuine one and that the ARE-1s actually produced before Customs were never registered with any Central Excise Authority and as such, the same was also not genuine. 6.2 I further find in the copies of Shipping Bills placed in the respective Rebate Claim ARE-1 Nos. and dates are changed from 441, 442, 443 444 all dated 11.05.04 to 1/RI/04-05, 2/RI/04-05, 3/RI/04-05 4/RI/04-05 all dated 14.04.2004 with Customs endorsement by way of putting a round seal and signature. Whereas in the copies of Shipping Bills bearing the same No. date forwarded by the Assistant Commissioner of Customs, SIIB (EXP) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date were changed as 01/RI/04-05, 02/R/04-05, 03/R/04-05 04/RI/04-05 all dated 14.04.2004 that as per his knowledge Shri Kuchubhai did all the work related to correction of ARE-1 No. in Shipping Bill, affixing round seal of Customs in Shipping Bill and signature of Customs Officers towards so called amendments in the EDI Shipping Bill No. 2746800, 2746716 2746802 all dated 04.05.2004 and 2753721 dated 07.05.2004, that he confirmed the facts stated by Shri Rajubhal Shinde, Sub-Agent of Mis. J.B. Udani Company, CHA, who handled export work in respect of aforesaid four Shipping Bills of M/s. Rani Sati Impex, Surat that the original (actual) ARE-I No. 441, 442, 443 444 were not registered with any Central Excise Authority in Surat or elsewhere that he does not know present address and contact number of Shri Kuchubhai /Shri Dikumar as both have left Surat since January, 2005 and their present whereabouts is not known to him. 6.7. Appellant No. 1, in defense reply dated 28.04.2014 contended that the allegation of tampering with export documents is based on statement evidences only and no corroborative evidences are available to support such an allegation. Also the Show Cause Notice itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2004 which were not produced before the Customs Authority, JNCH. Further, I also find that tampering of the documents which have already passed through Customs procedure is a serious offence an rebate cannot be admissible on the basis of such tampered documents. 6.10 1 find that Appellant No. I, Appellant No. II had abetted the provisions of Centra Excise Act, 1944 and Rules framed there under as well as the provisions of Customs Act, 1962 in as much as they tampered the statutory documents for Customs clearance lie Shipping Bill, ARE-1 and presenting such tampered documents to Central Excise Department with an intention to avail rebate of Central Excise Duty fraudulently. I find that all the rebate claims (total four filed by Appellant No. I, are required and liable to be rejected summarily under Rule18 of Central Excise Rules, 2002 read with Section 11 B of the Central Excise Act, 1944. Further, for all these acts of contravention, Appellant No. I and Appellant No. ll are liable for equal penalty under Central Excise Rules read with Section 11AC of the Central Excise Act, 1944. 3.15. Being aggrieved by the order passed by the Appellate Authority, the petitioners preferred four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legal Consultant, Shri Manibhai Patel and their agent Shri Kuchubhai/Shri Dilkumar indulged in tampering the statutory documents like Shipping Bill and creation of forged statutory documents like ARE-I in a sense that they produced ARE-1 No. 441, 442, 443 444 all dated 11.05.04 before Customs Officers at JNCH, Nhava Sheva for export of goods under Shipping bill No.2746800, 2746716 2746802 all dated 04.05.2004 and 2753721 dated 07.05.2004 and after passing/shipment of the goods and receipt of document, they managed ARE-1 Nos.1 /RI / 04-05, 2/ RI/ 04-05, 3/ RI/ 04-05 4/ RI/ 04-05 fraudulently from the jurisdictional Range Office i.e. Range-III, Division-I, Surat-I. Towards this, they tampered with the ARE-I No. 44], 442, 443 444 by putting white fluid on the same and allotting ARE-I No. 1/RI/04-05, 2/RI/04-05, 3/RI/04-05 4/RI/04-05 which is clearly evident from the original and duplicate copy of ARE-I as well as triplicate copy of ARE-I kept in respective rebate claim files. Shri Manibhai Patel, Legal Consultant, in his statement dated 04.01.05 and 28.02.06 had categorically admitted that he himself had changed ARE-I Numbers as well as corrected other particulars in original ana dup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imaginary/ hypothecated numbers 441, 442, 443 444 (without registering with Central Excise Authority), producing the same before the Customs authority and subsequently, after shipment of goods, tampering with the said ARE-1s by deleting / removing the hypothecated number by applying while fluid, thereafter getting it registered with Central Excise Authority and allotting new number, presenting such fraudulent documents like tampered ARE-I and Shipping Bills before Central Excise Authority to avail the rebate of Central Excise Duty amounting to Rs. 9,86,303/- fraudulently, though they were very much aware that the ARE-Is produced by them for the said purpose are not the genuine one and that the ARE-Is actually produced before Customs/passed by Customs were never registered with any Central Excise Authority and as such, the same was also not genuine. Government further observes that on the basis of this investigation, an FIR, was lodged at the jurisdictional Police Station and the matter was pending with Hon'ble Sessions Court, Surat. Under the circumstances, the lower authorities had rightly rejected the rebate claims and imposed appropriate penalties as relevant statutory provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er considering paragraph No.8 of Chapter-8 of the CBES s Excise Manual of Supplementary Instructions, 2005 came to the conclusion that such Notification was issued in exercise of Rule 18 of the Rules empowering the Central Government to grant the rebate of duty paid on excisable goods or on the materials used in manufacturing and processing of such goods where the goods are exported and the rebate under Rule 18 of the Rule would be subjected to the conditions of limitations, if any, and the fulfillment of such procedure as may be specified in the Notification. It was pointed out that the Hon ble Bombay High Court after considering the Inspections Manual of Instructions issued by CBEC came to the conclusion that the procedure which has been laid down in Notification and the CBEC s Manual is to facilitate the processing of the application for rebate and to enable the Authority to be duly satisfied that the two fold requirements of the goods having been exported and of the goods bearing a duty paid character are fulfilled. 4.4. It was therefore submitted that in the facts of the case, both the conditions are satisfied as there is no denial with regard to the export of the goods and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mandatory provisions of the Manual of the Instructions of the CBEC. 5.3. It was further submitted that the show-cause notice was issued in the year 2014 as the original documents were lying with the Court and various letters were written from time to time by the respondent-Authorities to the Police Authority for the original documents but it was pointed out that as the case was pending before the Court of Sessions, original documents could not have been returned to the respondent-Authority without permission of the Court. It was therefore submitted that the impugned show-cause notice was issued thereafter in the Month of February, 2014. 5.4. It was therefore submitted that in view of the concurrent findings arrived at by the three Authorities, no interference may be made while exercising the extra-ordinary jurisdiction under Article 227 of the Constitution of India. 6. Having heard the learned advocates for the respective parties and considering the facts of the case, it is not in dispute that during the course of investigation it was found that the petitioners and other co-noticees have filed a rebate claim with forged documents like shipping bills and form ARE-I which is a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the first day of the financial year. Paragraph No.2 of the Chapter-8 in relation to Form ARE-I reads as under : 2. Forms to be used 2.1 ARE.1 is the export document (See Annexure-14 in Part 7), which shall be prepared in quintuplicate (5 copies). This is similar to the erstwhile AR. This document shall bear running serial number beginning from the first day of the financial year. On ARE. 1, certain declarations are required to be given by the exporter. They should be read carefully and signed by the exporter or his authorised agent. The different copies of ARE.1 forms should be of different colours as indicated below. Origina White Duplicate Buff Triplicate Pink Quadruplicate Green Quintuplicate Blue It will be sufficient if the copies of ARE.1 contain a color band on the top or right hand corner in accordance with above color scheme. 2.2 An invoice shall also be prepared in terms of rule 11 of the said Rules. 2.3 For filing rebate claim : There is no specified form for filing claim of rebate. The same may be done by the exporter on their letterhead and filed with the requisite documents. 9. Paragraph No.5 of the Chapter-8 pertains to the distribution of the documents (ARE-I) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification, and, if it is not siting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. RULE 25. Confiscation and penalty. (1) Subject to the provisions of section 11AC of the Act, if any producer, manufacturer, registered person of a warehouse or a registered dealer, - (a) removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or (b) does not account for any excisable goods produced or manufactured or stored by him; or (c) engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under section 6 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) [1] This Note for speaking to minutes is filed by learned advocate for the petitioner, as inadvertently Section 11AC (4) is inserted in para 11 of the common order dated 11th September 2024 instead of Section 11A (4) of the Central Excise Act, 1944. Section 11A (4) of the Central Excise Act, 1944 reads as under: 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. * * * (4) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by the reason of-- (a) fraud; or (b) collusion; or (c) any wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under Section 11AA and a penalty equivalent to the duty specified in the notice. [2] Para 11 of the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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