TaxTMI 
TaxTMI 
2016 (3) TMI 774
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....resh Prabhu. 2. As per facts on record, M/s SLN Overseas Traders, who are engaged in the export of garments, filed three Bills of Entries on 27.05..2009 for export of polyester corduroy fabric under a declared value. The DRI examined the export container kept ready in the container yard of New Mangalore Port and conducted detailed examination on 01.06.2009. It was found that out of 390 cartons only 358 were filled and even out of these 358 cartons 100 cartons were fully empty without any goods. The value of the filled goods was also found to be much on the lower side. As a result of further investigations, it was found that total value of the goods was around Rs. 6.25 lakhs as against the total value of Rs. 1.05 crores declared by M/s SL....
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.... plan. The officers will often have to rely upon circumstantial evidence, since illegal activities are born in darkness and grow up in stealth, Those involved will take care to ensure that their foot prints are obliterated, so as to make it difficult to link them to the illegal act. This does not mean that the department is helpless in booking the evaders under such circumstance. Law provides that circumstantial evidence can be taken to prove the wrongdoing. As per Section 105 of the Evidence Act when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. The broad effect of the application of the basic principles underlying section 106 of the Evidence Act would be that the onus of proof is di....
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.... M/s SLN has also divulged these aspects in his statements given to DRI and stated that such modus operandi was adopted by him in all the earlier consignments of ladies garments exported in order to avail undue duty free import benefit under DFIA scheme. The benefit of the judgment in Francis Stanly @ Stalin v Intelligence Officer, Narcotic Control Bureau is distinguishable, in as much as the fact that there was no threat and coercion while recording the statements is evident from the fact that the statements were taken on different dates, The first statement of Suresh Prabhu was on 01/06/2009 again another statement was recorded from him on 02/.06/2009 which reiterates the contents of his previous statement. The statements were retracted b....
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....equired in such illegal activities, is part of the consortorium consisting of himself, Shri Suresh Prabhu and Shri Feroz fhan to execute the fraudulent export of illegal money laundering and also for getting undue benefit of DFIA. It is seen that Shri Imtiaz Ahmed is the person directly or indirectly arranging for sending the money from Dubai to India to cover the subject exports of M/s SLN by way of inward remittances from certain Dubai based parties who are not actually the consignees for the subject export goods. Shri Imtiaz Ahmed has conspired the illegal export of misdeclared goods by making full payment of overvalued goods and recovering the same through his counterparts in India. The statement of Shri Suresh Prabhu dated 1.6.2009, 2.....
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....Ahmed was also involved in the fraudulent act along with Suresh Prabhu and Shri Feroz Khan." As is seen from above, it is clear that the appellant is being penalized on the basis of the statements given by Shri Suresh Prabu & Others which were retracted subsequently and penalty was imposed upon the basis of circumstantial evidences. 5. Without going into the detailed evidences, we find that separate proceedings were initiated against the same appellant arising out of the same set of facts and circumstances resulting in imposition of a separate penalty of Rs. 2 crores upon him. The appeal filed by the appellant against an earlier order, which relate to same set of investigations, was considered by the Tribunal and vide Final Order No. ....
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....bability that a prudent man may on the basis thereof believe in the existence of the fact in issue. We find that there is no legally sustainable basis of the charge against the appellant." 6. Inasmuch as the earlier appeal of the same appellant and the present appeal arise out of the same investigations including the same exporters M/s SLN and the same statements, we find no reasons to take a different view. Accordingly, by following the earlier order of the Tribunal, we set aside the penalty imposed upon the appellant. 7. Apart from above, we also note that the appellant was a resident of Dubai and it is not the Revenue's case that during the period in question he had come to India. In the above referred judgment of the Tribunal bein....