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TMI Blog2005 (7) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... e not brought on record. When full remittance received through Banking channels is being upheld, the declarations of undervaluation made to Dubai Customs cannot be a reason to arrive at bringing home the charge on the present appellants of having knowledge thereto. The forging documents of the Delhi Chamber Officials by the appellants cannot be conclusively accepted. If the appellants have given duplicate sets of invoices showing different values, that surely cannot be an offence of misdeclaration on Customs Documents in India. Since it is not admitted by the exporters that the lower values on such invoices was the Transaction Value. The price as shown at higher levels are claimed, declared confirmed to be received via Banking Channels is a fact on record. The fact of duplicate sets being in existence is only a presumption against the respondents, if at all, they have supplied the same. It is common knowledge that fake letter heads, can be duplicated by Computers/Scanners there is no material in the grounds urged before us to arrive at that, as per forensic evidence, etc they are handiwork of issued by M/s. DOL especially the invoices with lower prices or they were within the knowl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigations, DRI estimated the value of export consignment to be not more than Rs. 45 lakhs. Shipment of the said export goods was allowed in pursuance of an interim order dated 1-3-1993 of the Delhi High Court in a writ petition No. 1081/93 filed by M/s. DOL. Subsequently, a show cause notice was issued to M/s. DOL on 10-1-1994 on completion of the investigation alleging that M/s. DOL had misdeclared the description as well as the value of the export goods as required under clause 3(3) of the Export Trade Control Order, 1998, thereby, rendering the export goods as prohibited under Section 11 of the Customs Act, 1962 and as such liable for confiscation under Section 113(d) of the Act. The case was adjudicated by the Commissioner, Kandla vide order in original dated 15-3-1994 who dropped the charges framed against M/s. DOL. The Commissioner's said order was reviewed by the Board with the direction to file an appeal before Hon'ble CEGAT. The appeal was filed in June 1994. The CEGAT, in its order dated 22-12-1994 held that there were materials to indicate that the goods were not made from prime HDPE granules and remanded the matter back to the lower authorities is for fres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Consulate General of India, Dubai, exporter Shri V.K. Gandhi of M/s. DOL, Shri R.S. Sodhbans, Honorary Secretary, Delhi Chamber of Commerce, New Delhi Officials of the Enforcement Directorate, Customs Officials at Dubai, Customs officials at Kandla and several others considered capable of contributing towards the ultimate objective of fresh investigations. Having gathered sufficient evidences against M/s. DOL as a result of extensive investigations carried out by DRI, a fresh show cause notice was issued to M/s. DOL on 30-12-1997 on the basis of fresh evidences received from the Consulate General of India, Dubai, in the form of copies of Bills of Entry in which the value declared in Dubai was US $ 0.10 per meter. M/s. DOL had exported Polyethylene Newar straps declaring the FOB value as US $ 1 per meter. M/s. DOL had exported total 30 lakhs meters of Newar with a total declared FOB value of US $ 30,00,000/- whereas the importer in Dubai had only declared total value of US $ 30,00,000/- for the said goods. Thus there was over valuation to the extent of ten times, it was clearly brought out in the show cause notice that M/s. DOL had knowingly and willfully fabricated two parallel s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the forgery. (vii) That the investigation has not been done with regard to actual role played by the staff of the importer at Dubai. (viii) That the invoices were forged by Shri Kamal Chaddha's employees, which as per his confession was done without his knowledge and of which M/s. DOL was not a party. That since there is no concrete evidence to the contrary, this has to be accepted as such a factual position. (ix) Commissioner of Customs has further observed that the forgery had been done without the knowledge of Shri Kamal Chaddha and hence obviously without the knowledge of the notice M/s. DOL and Shri V.K. Gandhi. (x) That the statements of Shri Malkhan Singh and Jaskaran Jain relied upon by the department had been retracted and therefore lose relevance and become redundant. (xi) That since remittance through banking channel has been received, there is no violation of FERA, 1973 inasmuch as the provisions of Section 18 of FERA does not appear to be applicable in the instant case. (xii) That the margins of profit of about 1900% is indeed very high and indicates that the goods are abnormally priced and in fact is suggestive of manipulation or stage managed pricing. But at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of Commerce was found to be forged. (b) This could have been done only by the exporter as he is the beneficiary of the fraud. 4(a) The adjudicating authority has wrongly placed reliance on the version of the importer that the invoices submitted to Dubai Customs were forged by the employee of his firm without his knowledge to save Custom duty. There is ample contradiction on the above version of the importer. The exporter claims that the invoices submitted by the importer were not supplied by them. On the other hand the importer claims that the invoices were supplied by the exporter and the same have been forged by his employee after taking copies. (b) It is strange to accept that the employee indulged in forgery and manipulation of documents to save Customs duty and that too without the knowledge of the employer. This defies logic. Further, it is highly strange that the importer has come forward on his own and claimed before the Income tax authorities that the invoices were manipulated or forged by this employees and that too without his knowledge. 5(a) Shri Kamal Chaddha has not produced any corroborative evidence for the alleged misconduct of his employees and in fact he made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rightly rejected by the income tax authorities. 8(a) The Commissioner should have realized that all evidences clearly indicated a well planned and well executed conspiracy to defraud the Indian Govt. by taking undue and wrong export benefits in a fraudulent manner and the Dubai Govt. by evading Customs duty. The evidences also clearly establish that the exporter and the importer are co-conspirators in the commission of the fraud. This is evident from the fact that both have been actively involved in the commission of the fraud and are beneficiaries of the fraud. The purpose of importer in Dubai namely Kamal Chaddha's statement, and that, too without any corroborative evidence is to bail out the exporter. (b) These aspects do not seem to have been adequately appreciated by the adjudicating authority and on the contrary the statement of the importer has been used to provide total relief to the exporter prayer is made that grounds for confiscation under Section 113(d) of the Act imposition of penalty under Section 114 of the Act appears to be justifiable the Commissioner should have confirmed the allegation contained notice dated 30-12-1997. 2.1 It is on record that a show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f contempt petition no 542-543/1990 filed by M/s. DOL. 2.3 Therefore, inspite of the aforesaid unconditional(a) apology and grant of Export incentives i.e. DEEC claim in the books having been granted to-M/s. DOL on 20-9-1997, the issue of fresh notice dated 30-12-1997 to M/s. DOL Shri V.K. Gandhi on the Export of very said same 10 Shipping Bills, the subject matter of Export incentives granted under DEEC, to bring in again a charge of - (i) in para 16 thereof of confiscation liability under Section 113(d) of the Customs Act 1962 for the said goods exported, as per the said 10 shipping bills. (ii) In para 16.2, penalty under 114(1), of Customs Act, 1962 for export of goods in contravention of FERA 1973, Export Central Order 1988 Customs Act, 1962. (iii) In para 16.3, penalty under Section 114(i) under Section 140(1) (2) of Customs Act, 1962 for having exported the goods in violation/contravention of provision of FERA 1973, Export Control Order 1988, Customs Act, 1962. was issued. These resumed proceedings, on the Respondents, herein are not permissible in view of the principle of Rejudicate as pleaded by the Respondents before us. The ld. DR could not submit any material, for lack o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the settled position that akin to the provisions of Res judicata is finality in all legal proceedings, as laid down by the apex court in case of Parashuram Poultry Works v. I.T.O. (1977) 106 ITR 1 wherein it was observed by the - ......At the same time, we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that state issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi judicial controversies as it must in other spheres of human activity. and on considering that the letters the enquiries, at Port of Destination could have also been obtained, after due diligence even before the first notice was issued which appears to have not been done. The conduct of Piecemeal adjudications under Customs Act are not approved by the Apex Court, as was held in the case of Mohan Meakin Ltd. [2000 (115) E.L.T. 3 (S.C.)] Following this position in law on facts in this case, we cannot allow these proceeding to continue. Investigators cannot be allowed to proceed on to build up case piece by piece, after the notice has replied to a notice and an adjudicated m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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