2014 (11) TMI 298

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....USAP No.28 of 2013. 2. CUSAP No.28 of 2013 has been preferred by the assesse appellant under Section 130 of the Customs Act, 1962 (in short, "the Act") against the order dated 25.6.2013, Annexure P.1 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi (in short, "the Tribunal"), show cause notice dated 29.3.2004, Annexure P.2 and the order dated 6.1.2006, Annexure P.3 passed by the adjudicating authority. 3. A few facts relevant for the decision of the controversy involved as narrated in CUSAP No.28 of 2013 may be noticed. Acting on a specific information that the firms/companies namely M/s Contessa Commercial Co. (P) Limited, M/s ASK Exports, M/s SRM (P) Limited, 113, Park Street, Kolkata and M/s Varun Enterpri....

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....inod Kumar Garg, N.D.Garg, Sanjeev Kumar, Shambu Kumar, Vineet Kumar Saggar and Manjit Singh intimately connected with each other alongwith Shri Raj Kumar Kishorepuria, Anil Kumar Kishorepuria and Sunil Kumar Kishorepuria had defrauded Customs making fraudulent claim of drawback through misdeclaration of description of goods.Vide order dated 6.1.2006, Annexure P.3, the Commissioner ordered confiscating the exported goods and demanding the refund of the drawback alongwith interest, disallowing the pending drawback on GCT and HRTT and imposing penalties. The said order was challenged through appeals before the Tribunal. The custom authorities also filed three appeals. When the appeals came up for hearing on 17.8.2006, the interim relief wa....

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....f the revenue and also penalties imposed by the adjudicating authority affirmed the findings of the adjudicating authority relating to mis-declaration of the goods and wrongful claim of Duty Drawback/DEPB credit and concluded as under:-              "14.2 In the present case, the appellants in Table 1 and Table 5 resorted to fraud consciously by their ill design as was found by investigation and adjudicating authority. Their conscious knowledge of mis-declaration as to description of the goods as well as value of the export made from India was proved when they had intention to make ill gain from undue claim of DEPB. Motive of all these appellants was oblique to promote illegalit....

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.... appellants when material facts and evidence relating to their HI design remained in their special or peculiar knowledge. Xx xx xx xx xx xx xx xx          14.11.In a leading English case i.e. Derry and others v. Peek (1886-90) All ER 1 what constitutes 'fraud' was described thus (All ER p.22 B-C) fraud is proved when it is shown that a false representation has been made (i) knowingly or (ii) without belief in its truth or (Hi) recklessly, careless whether it be true or false. This aspect of the matter has been considered by Apex Court in Roshan Deen vs. Preeti Lal (2002) 1 SCC 100, Ram Preeti Yadav vs. UP Board of High School and Intermediate Education 2003(8) SCC 311, Ram Chandra Singh&....