TaxTMI 
TaxTMI 
2018 (11) TMI 852
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...., Shri Mangilal Chouhan, Superintendent (Now Retired), Shri Rajesh Purania (Inspector), Shri Govind Malviya (Superintendent), Shri Subhash Pandey (Inspector) and Shri Vinayak Joshi Superintendent (Now Retired). 2. As all the appeal arises from common adjudication order; issue we take all the appeals for consideration and disposal by this common order for the sake of convenience. 3. The facts that arises for consideration is that the appellants during the material period of time were performing their duties at ICD Dhannad and ICD Kheda, District Pithampur in the various capacities as the departmental officers. One, Shri Kirit Shrimankar, the alleged exporter of fabrics and readymade garments, was, alleged to have exporting goods under dummy IECs i.e (Import - Export Code) under claim of Duty Drawback/ DEPB schemes by resorting to mis-declaration of description and value of export goods. The case was investigated by the DRI, Mumbai which culminated into issuance of aforesaid Show Cause Notice. During the course of investigation the exported goods were called back from the port of export and the samples were drawn and sent for test report. These samples of readymade garments exp....
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....ed penalty upon the present appellants. A penalty of Rs. 25,00,000/- on Shri Chattraj (Appellant No. 6) and of Rs. 10 Lakhs each on other Appellants (Appellant Nos. 1, 2, 3, 4 & 5) was imposed under Section 114 (i) and (iii) of the Customs Act, 1962. 5. Being aggrieved the appellants are in appeal before this Tribunal. 6. The Ld. Senior Counsel, Dr. Samir Chakraborty, appearing for Shri S. Chattraj, submits that the evidences of call records between Shri Chattraj, attending marriage ceremony of Kirit Shrimankar's son at Mumbai and availing flight tickets for the self and his family, staying in hotel at expenses of Shri Kirt Shrimankar cannot ipso facto leads to conclusion that the Appellant was involved in alleged overvaluation of export goods along with the exporters. That it is only an allegation that he was entertained at guest house of Kirit Shrimankar (Main Noticee) whereas there is no evidence of same. The DRI/Department has not brought on record the transcript of the phone calls between Shri Kirit Shrimankar and subject appellant to support the allegations made against the appellant. He relies upon Tribunal's order in case of Shafeek P.K. Vs. Commr. of Customs 2015 (32....
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....n to them by their Seniors and also as per various instruction, Trade Notice etc. issued from time to time by the Department. As the exports were assessed provisionally and the samples of export goods were drawn which were sent to Textiles Committee Lab. Mumbai, till the receipt of report from them no action to grant export benefit was in India. The same is an affiliated body governed by Ministry of Textiles. Govt. of India. The physical examination of export goods was carried out as per prescribed examination norms. That only after receipt of examination report from Textiles Committee and realization of exports proceeds, the exports benefits were given to the exporters. The Appellants were working strictly as per the procedure and instructions and no wrongdoing was committed by them. Shri Kirit Shrimankar was representing himself as an representative of exporter and hence only few calls were made to him in case of any query. That prior to posting of the present appellants, the other predecessor officers were also deputed on same position in case of same IECs. The Appellants merely followed the same procedure which were being followed in past at these ICDs. The predecessor officers....
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....the relevant extract of the order is as under: "11.3. Otherwise also, we find that the entire case of the Revenue rests upon the sole retracted statement of Shri Antony Morris. Even if according to the Revenue, the said retraction was only a mechanical retraction and as an afterthought, inasmuch as no force was used to obtain the same, we find that as per the settled law, statement of a co-accused cannot be held as sufficient to nail another person, unless there is an independent corroborative evidence to that effect. The adjudicating authority has nowhere doubted that the appellant was in Dubai during the period of seizure and had only visited India during the last week of July, 2012. However he has relied upon the call data records showing telephonic talks between the appellant with Shri Kannan and Shri Antony Morris. What was the subject matter of the conversations during the call records has not come on record. Merely on the basis of such call records, it cannot be concluded that the appellant was the kingpin of smuggling operations, as concluded by the adjudicating authority. It may be observed here, even at the cost of repetition, that except Shri Antony Morris, no other p....
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....wani were conspirator in the smuggling of goods. Though on the basis of telephone calls there is serious suspicion that these both persons are involved in the conspiracy of the smuggling of the gold but in my view the suspicion, whatever grave in manner, cannot take the form of evidence particularly when there is no corroborative evidence is available. I am therefore of the view that as per the available material being not sufficient, penalties on Shri Jitendra N. Jeswani and Shri Narendra P. Jeswani are not sustainable, as a result: Appeal of Shri Khemani Purushotam Mohandas is (a) dismissed. Appeal of Shri Jitendra N. Jeswani and Shri Narendra P. Jeswani (b) are allowed." Only on the basis of familiarity between the two, it cannot lead to inference of Appellant having committed any illegal act. In case of other, who are Inspectors & Superintendents, we find that there is no evidence of these Appellants getting any favour from Shri Kirit Shrimankar or any other person. Even in case of Inspectors, Shri Rajesh Purania and Shri Subhash B. Pandey, we find that they have made few calls to Shri Shri Kirit Shrimankar, which cannot itself lead to the conclusion or suspicion that ....