TaxTMI 
TaxTMI 
TaxTMI 
2021 (7) TMI 578
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the entire fraudulent exports through as many as following seven number of different companies:- 1. Durga Apparels Pvt. Ltd. 2. Om Shreem Ananda Foods Pvt. Ltd. 3. Threepence Craft 4. Designer Innovation 5. White Swan Inc. 6. Blue Cobalt Impex 7. Heena Prints Later following two companies were also found to be solely controlled by Sajjan Kumar: 1. Indus Chemitex Ltd. 2. S.R. Goyal & Sons (HUF) Later he was found to be the key-person for two more firms, namely, M/s. Indus Chemitex Ltd. and S.R. Goyal & Sons (HUF). Based on the said investigation searches were conducted at various places including residence and the offices of various companies of Shri Sajjan Kumar. His statement and statement of various other concerned were got recorded. After recovering various incriminating documents that the market inquiry got conducted by the officers of ICD, Ballabgarh with sample of hand-made knotted carpet which was drawn out of 10 shipping bills filed by M/s Durga Apparel Private Limited (DAPL) on 29.11.2010. The said inquiry was got conducted by the present appellant the then Inspector (now retired) alongwith another Inspector namely Shri Naresh Kumar. The inquiry got c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by Shri Sajjan Kumar and that those were not dealing into export of the carpets. 5. It is further submitted that though DRI collected such informations about said companies which show that the inquiry had been conducted in casual manner, but there was no intent of appellant to involve with the defaulting exporter nor any collusion for defrauding the Government Exchequer by claiming duty draw-back on high value. Otherwise also there is no such allegation in the Show Cause Notice, nor any evidence has been produced on record by the Department to show that the market inquiry was conducted by the appellant with a malafide intend to extend undue benefit to the exporter and to help him export such goods which otherwise were liable for confiscation. Nor there is any evidence to prove that appellant has been the beneficiary of the higher duty drawback claimed by the exporter. In the given circumstances, the same cannot be held to be an act of abetment. No question of imposition of penalty on the said ground at all arises. The order under challenge holding the involvement and collusion of the appellant with the exporters in exporting their goods on highly inflated value to defraud the Go....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gs in the order under challenge. Nothing has been discussed by the Adjudicating Authority as to what has rendered the alleged casual and amateur manner of conducting market inquiry into an act of alleged abetment for fraudulent export. To further appreciate, it is important to understand the ingredients of the penal offence, namely, abetment. Section 107 of Indian Penal Code 1862 defines abetment to include instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omissions to the doing of the said act. Thus, abetment under the Indian Penal Code basically takes place when a person abets the doing of a thing by following:- 1) Instigating a person to commit an offence, or, 2) Engaging in a conspiracy to commit it, or 3) Intentionally aiding a person to commit it 9. Instigation basically means suggesting, encouraging or inciting a person to do or abstain from doing something. Thus, instigation is something which must be sufficient to actively encourage a person to c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....utted from letter No.50 D/25/2011 dated 02.09.2011 (RUD-II) and also from his own subsequent letter dated 11.11.2011 (RUD-12) where he informed Director General, DRI, about him to be the authorized person of all the companies in Table-I. All the documents collected & statements recorded by the department are absolutely silent about any alleged role of the appellant. 11. No doubt, the penalties under Section 114 (iii) & 114 AA having been confirmed by the Adjudicating Authority below, based on the facts that both the firms which were inquired by the appellant were not competent to give the rate of the sample of the carpets taken from alleged exports being found to be the companies of Shri Sajjan Kumar only and none of them being the exporter of carpets on the date of market inquiry. Their IEC code for garment/carpet export is four months later than the date of inquiry. But these facts are, at the most sufficient to show that: (i) the appellant, as inquiry officer, was not diligent enough to gather relevant details. (ii) He failed to appreciate the relevant facts. (iii) Appellant conducted enquiry in casual & improper manner. To my opinion such negligence on part of appellant amo....