TaxTMI 
TaxTMI 
2007 (11) TMI 262
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....ational (hereinafter referred to as "Rushi") proprietor Shri Bakul Parekh. The declared FOB values have, in the cases of all four exporters, been rejected and re-determined, and the goods themselves have been confiscated with option to redeem the same. In addition, penalty, under Section 114(i) of the Customs Act, 1962 (hereinafter referred to as "the Act") has been imposed on proprietors of all four exporters, as well as on Rajeev Agarwal, C R Unnikrishnan, Mufazzal Hakim, Ramesh Ashar, Sudhir Naik, M/s Shuttle Trans Shipping Co. Pvt Ltd and Shri Milind Surve. Out of these, except Shri Abhijit Surve, M/s Shuttle Trans Shipping Co. Pvt Ltd and Shri Milind Surve, all are in appeal before us. The impugned Order-in-Original drops the proceedings against H.S.Sandhu, Superintendent, R.K.Tomar, Superintendent and Bhimaji Indore, employee of A.S.Vasan & Sons, CHA, against which, the Revenue, being aggrieved, is in appeal. Since all these appeals arise out of a common order, are being disposed of by this order. We are, however, referring, for ease of reference, to the parties, collectively, as "the appellants" and are making individual references to the parties as and when nece....
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....as $ 55 per pair, and the PMV thereof was Rs 2400/- per pair. The total declared FOB value of the goods sought to be exported was Rs. 10,54,65,742/-, and total DEPB claimed thereon works out Rs. 1,55,12,060/-, as printed on the S/Bs. However, the DEPB copies of all 18 S/Bs are prominently endorsed to the effect that the available DEPB claim, and the value is as per the aforesaid Invoices bearing examination report on reverse. (In case of Lalit 3 cartons under Invoice no. 0504 were short stuffed, as per the examination report.) (c) The amended S/Bs printed on 14-05-03- These amended S/Bs show rate as "per dozen" as well as quantity in "dozen". The particulars appearing on these S/Bs are as under: (i) The 6 amended S/Bs of Lalit are in respect of 39996 dozen of "mens knitted T-shirts". The price declared is $ 11.70 per dozen, and the PMV thereof was Rs 500 per dozen. (ii) The 5 S/Bs of Rushi were in respect of 76800 dozen of "mens knitted T-shirts". The price declared was $ 11.70 per dozen, and the PMV thereof was Rs 500 per dozen. (iii) The 5 S/Bs of Hex related to 12750 dozen "chain wheels". The price declared was $ 37.20 per dozen, and the....
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.... are handed over to exporter/CHA, as the case may be. (xi) EP copy is not printed at this stage. (b) It is also relevant, in this context, to refer to Public Notice No. 65 dated 8.6.2000 and Public Notices No. 53/2001 dated 19.4.01 and 26/2002 dated 22.7.02 issued by the Mumbai Custom House. (c) Public Notice No. 65 supra stipulates, inter alia, thus: "The exporters will file details for DEPB shipping bills in he revised form as per Annexure "A" to this Public Notice. In case of DEPB Shipping Bills exporters are also required to file details as per declaration as per Annexure "D" in the format annexed to this Public Notice." Any query at the time of processing by Appraiser, DEPB cell or AC/DC(Export) may be obtained from the Service Centre and reply to the query has to be furnished through Service Centre." "The exporter may have issued invoice per dozen, but in such cases quantity has to be mentioned in pieces and not in dozens." "There is a provision for changing the Group Code No. /Item No./Value for DEPB Credit purpose and such changes will be reflected in the printout of the shipping bill. Such changes may be done by Appraiser (DEPB cell), A.C./D.C. (....
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.... which are to be found in Public Notice No. 65, dated 8.6.2000 (supra), issued by the Mumbai Custom House. According to this Public Notice, irrespective of whether the invoice relating to the goods mentioned the rate on "per dozen" basis, the quantity of the goods had to be mentioned in pieces, and not in dozens. It is a matter of dispute as to whether there were, originally, one or two sets of invoices (for each exporter) in the possession of Mr Unnikrishnan who presented them at the EDI counter - it is contended, by the appellants, that there was only one invoice, showing the quantity in "pieces/pairs", and rate as "per dozen" basis, whereas the Revenue contends that, there were, with him, two invoices, one showing the rate on "per piece/per pair" and the other on "per dozen", and that the former was presented to the EDI counter so that the value could be inflated 12 times and higher DEPB availed. It is not in dispute, however, that the Check List generated in the system showed the quantity of the goods in pieces, and the rate on "per piece" basis. While the quantity of the goods was admittedly correct, the representation of the "rate" on "per piece" basis....
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.... Unit Rate USD 11.70 per DOZ Kindly do the needful and oblige." There can, therefore, be no dispute about the fact that the only amendment sought by Shri Unnikrishnan was for changing the unit of the rate, from "per piece" to "per dozen". However, when this requisite amendment was made by the EDI operator, owing to the peculiarity of the EDI system, which does not recognize two units, one for quantity and the other for rate, the amendment in the unit of rate from "per piece" to "per Dozen", also resulted in a consequential amendment of the unit of quantity to "dozens" instead of "pieces/pairs". The outcome was that, in the amended S/Bs, the value of the goods, instead of reducing to 1/12th, remained unaltered, i.e. 12 times their actual value certified as per examination report on the reverse of Invoice, and the quantity in which no amendment was sought was increased by 12 times. It must be emphasized, however, that the parties before us are ad idem that this outcome was the result of the EDI system's peculiarity,....
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....t the said statement could not be relied upon: (a) The statement of Mr Mufazzal, recorded on 15.7.03, was retracted, by him, at the first available opportunity, on 16.7.03, before the learned Additional Chief Metropolitan Magistrate [hereinafter referred to as "the learned ACMM"], on which occasion he also complained of having been subjected to gross physical assault by the DRI officers, so as to extract, from him, a statement implicating one Mr. Rajeev Agarwal. (b) The learned ACMM himself examined Mr Mufazzal, and verified his medical report, both of which bore out the assertion, of Mr Mufazzal, of his having been subjected to assault. (c) While granting bail to Mr Mufazzal, the learned ACMM, in his order recorded, the following observations: "4. From the genuine efforts made by advocate for accused immediately after his being picked up and the blunt reply given by advocate for DRI that on the basis of information given by DRI, it seems that they are not acting as per the procedure laid down, for the purpose of interrogation and investigation but they are doing their investigation as per their own way by detaining the persons wrongfully without intimating their ....
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....s, and for rectifying the discrepancy request for amending the Shipping Bill was made by him on 14.5.03, and after taking necessary approval from the concerned Dy. Commissioner of Customs, Nhava Sheva the letters were handed over to the CMC for amending the Unit Rate from per piece to per Dozen. (c) Vide order dated 04-06-03the said Criminal Writ petition was rejected. (d) SLP 2463/2003 against order dated 4-06-03 was dismissed in view of decision in Poolpandi Vs Superintendent, Central Excise-1992(60) ELT24(SC).. (e) Mr Unnikrishnan, ultimately surrendered, on 28.7.03, before the learned Additional Chief Metropolitan Magistrate, and was taken into custody. (f) On 29.7.03, the DRI made an application before the learned ACMM, for the recording of Mr Unnikrishan's statement in the jail premises. Permission, as sought for, was immediately granted, by the learned ACMM. (g) Though officers of DRI pursuant to the said permission visited the jail premises to record his statement, they chose not to record his voluntary statement. (h) Instead of recording the same in judicial custody, the DRI filed another application before the learned ACMM, contending that Mr....
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.... to Mr. Unnikrishan passed severe strictures on DRI officers. It was recorded in his Bail order thus: "Before passing order, the report of medical officer of J.J. hospital and that of C.M.O. of Jail, dated 08.08.2003 are kept before me. On examination of the said accused in J.J. Hospital on 07.08.2003 in the evening, it is mentioned in the medical certificate by the concerned doctor that accused had sustained four injuries and they are due to hard and blunt objects i.e. kicks, punches and wooden stick (i.e. physical assault) and age of injury is shown more than 48 hours. This means that accused was assaulted on or before 6 p.m. of 05.08.2003. Admittedly, accused was summoned at about 02.30 p.m. on 05.08.2003 as per the story of the DRI and since than he was in custody of DRI. So for these reasons case would lie u/s 3 of chapter 1 of Criminal Manual." (p) After his release on bail, Mr Unnikrishnan was admitted in the MGM New Bombay Hospital, which further examined him and confirmed that he had suffered interalia fracture of the anterior portion of the 10th rib of his left side. (q) The above facts, as well as his retraction were reiterated by Mr Unnikrishnan, vide det....
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....ed him to accompany him to Bank of Baroda, where Shri Sudhir Naik gave him Rs. 5000/- with which account of the firm was opened. (b) Sudhir Naik took signatures on 15 blank letterhead, and that he has not signed the application for amendment. (v) Milind Shreedhar Surve, the brother of Abhijit Surve, proprietor of Tamarind, interalia stated that (a) the letter dated 12.5.03 of Tamarind for permission for warehouse stuffing was not signed by him, Abhijit Surve, or anyone he recognized, and (b) the appellant had sent him a sample of the export shoe, which was worth only Rs 100 and was available on the Crawford Market footpath. (v) Mrs S.S.Das stated that (a) she had given order "to check declared value fair" for the 18 S/Bs in issue, (b) as the value appeared to be on the higher side, she had ordered to check the value with respect to the quality of the goods, (c) so far as she remembered, at the time of assessment, the invoice value declared was per pc, (d) so far as she remembered, the S/Bs were for dock stuffed goods, (e) there was no examination report on the invoice, and (f) Mr Unnikrishnan told her that the values were higher because the chain wh....
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....t on per pc basis. (ix) Hillary Miranda inter alia stated that- (a) the person who brought him the amendment letters said that they pertained to the appellant and he should carry out the amendments, (b) he carried out the amendments, (c) the checklists were generated at ULA, CFS, and were in accordance with the annexures and invoice copies filed by Mr Unnikrishnan on 12.5.03, (d) as per the details in the annexures, he entered the data in the EDI system, (e) on completion thereof, the checklist was generated, (f) after Mr Unnikrishnan had approved the checklists by signing them, the command of submission of S/Bs in the EDI system was issued by him, (g) LEO is given only thereafter, (h) printout of the S/Bs can be taken only after LEO, (i) the system showed the LEO as also having been cancelled, (j) the unit for quantity in all the check lists was "pcs", (k) the rate was per pc in all the check lists, (l) in the amendment letters, change was sought from pcs to dozen, (m) as a result, the unit of quantity changed from pc to dozen, (n) CHAs were well aware that amendment could only be so effected, and (o) the amendment was not effe....
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....hat they did not know Unnikrishnan. These firms were formed using fraudulent addresses and even their names were fictitious. The declarations made by them before various authorities such as Central Excise and DGFT regarding various addresses and businesses were found to be fictitious and non-existing. All expenses for creation of these firms were borne by Mr. Agarwal, who lured them by promising part of sale proceeds of the DEPB licenses. xvii. Ramesh Ashar stated inter alia that- (a) On being asked by Bakul Parekh he suggested name of Unnikrishnan and gave his visiting card. (b) Through his firm Vinnytex Corporation, he traded in cotton T-shirts, blended shirts and ladies dresses. (c) Cheques received from Rushi were returned by his bank, M/s UCO Bank with remarks stop payment, (d) Goods were sent on challans of Vinnytex Corporation (d) Cheques exceeding Rs 25 Lacs were not for the seized T-shirts but for order of other Maxis and Shirts agreed to be supplied to Rushi. (b) Mr. Bakul Parekh has given fabricated story. (c) He had supplied interalia 183 cartons of T-shirts to Bakul Parekh, out of which 160 were being ex....
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....n. (d) Rajeev Aggarwal insisted that the containers reached after the cut off time of the vessel so that investigation agencies would have least time to react. (e) All four exporters denied having given authorization to Mr Unnikrishnan. The authority letters produced by him appeared, therefore, to be fabricated. (f) The contention that the Check List generated on 13.5.03, showed the rate in "per piece" owing to peculiarity of the EDI system, was unfounded as the check list tallied with the invoices, which also showed the rate "per piece" basis. When the high declared value of the goods came to the notice of Mrs. Das, she questioned Mr Unnikrishnan, who stated that the engineering items were parts of Toyota/Mercedes cars and that the shoes were to be branded by the buyer. However, Mrs Das nevertheless ordered verification of the declared value. The veracity of the declared value was also doubted by Mr Natekal. (g) Despite the above, neither Mr Sandhu nor Mr Tomar took notice of the high value of the goods, and granted LEO in respect thereof. (h) Later, on finding that the fraud was being detected, a hasty attempt was made to have the S/Bs amend....
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....; It is not in dispute that neither the Revenue nor Vinod Shukla moved the Hon'ble High Court for any modification or clarification. (ii) M/s Shuttle Trans also filed Writ Petition no. 6006 of 2003 before Hon'ble Bombay High Court, seeking inter alia release of its containers, however the same was dismissed as withdrawn. However, Sanjay Singh of M/s Shuttle Trans in rejoinder affidavit filed by him has stated that he was slapped on several occasions during his interrogation & recording of statements and his staff was also manhandled by the officers. (iii) On 4.11.03, a Show Cause Notice was issued, by the DRI, under Section 110(2) of the Act, proposing extension, of the time fixed for issuing the substantive Show Cause Notice in the case, by 6 months, omitting, conspicuously, to mention, therein, the time fixed by the Hon'ble High Court vide its order dated 11.8.03 supra. (iv) Vide order dated 10.11.03, the Commissioner extended the time, for issuing Show Cause Notice in the matter, till 31.12.03. (v) On 17.12.03, another Show Cause Notice, proposing further extension of time under Section 110(2) of the Act, till 13.5.04, was issued. In this Show Cause Notice, too....
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..... 12. The impugned Order of the Commissioner upholds the allegations in the Show Cause Notice in part, and drops them in part. The Commissioner has upheld the allegation of attempt to avail excess DEPB, by the means alleged in the Show Cause Notice, which have already been set out hereinbefore. Consequently, the goods in issue have been confiscated and penalties have been imposed on Rajeev Agarwal, C R Unnikrishnan, Bakul Parekh, Vinod Shukla, Nayan Upadhyay,. Mufazzal Hakim, Ramesh Ashar, Sudhir Naik and Shuttle Trans Shipping Co. Pvt Ltd. However, the Commissioner has exonerated the departmental officers, Mr Sandhu & Mr Tomar, and employee of M/s A.S. Vasan & Sons, Shri Bhimaji Indore, of any complicity in the matter. The allegation of Shri Unnikrishnan and Rajeev Agarwal having conspired with Mr Sandhu and Mr Tomar to fabricate a second set of invoices, containing the rate in "per doz", after the seizure of the goods, has also been dropped for want of any corroborative material. Rather, it has been found, by the Commissioner, that the entire attempt to avail irregular DEPB was the brainwave of Mr Unnikrishnan, Mr Mufazzal and Mr Rajeev Agar....
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....concerned, the value had been worked out as the sum of an assumed profit margin of Rs 12.5 per pair and the mean of Rs 50/- and Rs 75/- per pair, which were merely approximate values cited by Phoenix Overseas, which itself disowned the shoes entirely. On the basis of such approximations, it could not be alleged that the DEPB claimed was more than 50% of the PMV. The declared PMV, of Rs 200 per pair, had been verified, to his satisfaction, by H.S.Sandhu, and could not be discarded in the absence of credible and acceptable evidence. (vi) Though it is mandatory to maintain register of documents handled, the records of M/s A.R. Michael, CHA firm of Mr. Marshall Machado, which would have shown the entries in accordance with the Invoice bearing examination report in respect of Tamarind are being suppressed. (vii) The authority of Mr Unnikrishnan to represent the exporters, therefore, ceased to be of any relevance, as there was no material justifying his being penalized under Section 114 of the Act. However, it has been emphasized that- a) Vinod Shukla, of Lalit, acknowledged, in his petition filed in the Hon'ble Bombay High Court, that Mr Unnikrishnan was autho....
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....y was granted till 6.8.03, to enable Mr Agarwal to approach the Hon'ble High Court, with the condition that he would visit the DRI office daily. This condition was duly complied with. (v) On 4.8.03, Mr Agarwal attended the DRI office, consequent to summons being issued. However, his presence was neither acknowledged, nor his statement recorded. This was verified, by Mr Agarwal, in a telegram sent by him to the DRI on the same day, i.e. 4.8.03, to which there is no response or rebuttal. (vi) Mr Agarwal approached the Hon'ble High Court for anticipatory bail. In its counter-affidavit filed thereto, the DRI again misstated that Mr Agarwal was willfully avoiding appearing before it to give his statement, and that he did not attend even on 4.8.03. (vii) Per contra, another affidavit, dated 23.9.03, was later filed, by the DRI, before the Hon'ble High Court, averring, again on oath, that Mr Agarwal "had been appearing before DRI, even without being summoned". (viii) As against this, in the Show Cause Notice, dated 4.11.03, which forms the genesis of the present case, it was alleged that Mr Agarwal was "yet to appear before DRI". In fact, ev....
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....er, it could not be said that Mr Unnikrishnan's statement was "corroborated" by those of other persons. Moreover, the said statement was contrary to the statement of Rajeev Agarwal, H S Sandhu, R K Tomar, Xavier Fernandes and Ramesh Ashar. (c) Sudhir Naik's statements made no reference to Rajeev Agarwal at all. (d) Mufazzal Hakim's statement was also unreliable, especially in view of the order, dated 17.7.03, of the learned ACMM in respect thereof, and the observations contained therein. His subsequent statements, which merely cited the mobile number 9821885498 as the number of Rajeev Agarwal, whom he had named in his earlier statements, too, could not, therefore, further the case of the Department. Mr Hakim had not produced any receipt for the sum of Rs 35.6 lakhs stated to have been lent, by him, to Mr Agarwal. (e) Sanjay Singh referred, not to Rajeev Agarwal, but to Ramesh Agarwal. The two were being sought to be equated merely on the basis of Mufazzal Hakim's statement, which was itself unworthy of credence. (f) Manoharlal Bhatia's statement did not implicate Mr Agarwal. All that it said was that, from the discussions betwee....
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....ed how his inculpatory statement came to be recorded, falsely implicating Mr. Agarwal. These were entirely ignored by the Commissioner. (iv) Similar was the situation in respect of Hex. (vi) The entire allegation of there having been two sets of invoices, had no legs to stand on. No second set of invoices, showing the rate in "per pc", had ever been brought on record. No second set of invoices had been made available to any appellant. (vii) Neither was there any material to involve Mr Agarwal with any of the shipping bills referred in the addendum. 17. On behalf of Muffazal Hakim, apart from denying his role in the subject exports, main thrust was placed on the coercive methods used by DRI and the strictures passed by the Ld. ACMM, while granting him bail. It was also pointed out before us that he was forced to implicate Rajeev Agarwal and Unnikrishnan. There was no material showing that he financed the exports, or helped in their sourcing, and there was no basis to penalize him. 18. On behalf of Mr. Ramesh Ashar it was interalia submitted that the impugned order places reliance on order of Ld. ACMM convicting him for non-compliance of summons, howe....
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....opose any action in regard to the shipping bills referred in the addendum. No penalty was imposable therefore, on them, nor could the goods have been confiscated. 22. The Ld. DR supported the findings of the Ld. Commissioner to the extent it imposed penalties on appellants. He stressed that the statement dated 5.8.2003 was voluntary statement of Unnikrishnan and was also corroborated by statements of Asif Ahmed, Kamlesh Gaur, Hilary Miranda, S.S. Das and Marshall Machado, and hence the Ld. Commissioner erred in exonerating Mr. Sandhu, Mr. Tomar and Bhimaji Indore. He reiterated the submissions made in the department's appeal. He submitted that much reliance cannot be placed on observations of Ld. ACMM, as the same were in regard to bail applications. He admitted that contemporaneous value of the export goods from EDI data was not ascertained. He submitted that the case was required to be proved not by mathematical precision but to a degree of probability that a prudent man may believe the same. 23. None represented on behalf of Bhimaji Indore. 24. Mr. Tomar appeared in person. He invited our attention to the provisions in the Exim Policy/Handbook stipulating that no ....
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....ction, if any, to be taken against the Petitioner, as expeditiously as possible, at any rate within 6 months from today, after giving opportunity of hearing, following the principles of natural justice." (Emphasis supplied) There can be no question of grant of hearing, etc., before adjudication. Clearly, therefore, the directions of the Hon'ble High Court include the adjudicatory process, and are not limited to the investigative part alone. The Hon'ble Supreme Court has directed strict compliance with the time schedule fixed by the Hon'ble High Court, subject to the right of either party to move the Hon'ble High Court for modification. No modification has been sought from the Hon'ble High Court. The order of the Commissioner has, admittedly, been passed after the expiry of 6 months, even counted from the date of the order of the Hon'ble Supreme Court. It is, therefore, ex facie, barred by time and is liable to be set aside on this score, itself. 29. As detailed submissions have been advanced, without prejudice to the above preliminary submission, on merits, by both sides, we deem it appropriate to examine the issue on merits as well. 30. Certa....
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.... piece" invoice with the "per dozen" invoice. This, according to the Commissioner, prompted Mr Sandhu to enter an endorsement, on the body of the invoice, regarding its discrepancy with the check list, which showed the rate in "per piece" (because the quantity was in "pieces", and the EDI system, admittedly, recognizes only one unit for the rate and the quantity). He would hold that Mr Unnikrishnan, nevertheless, attempted to carry the fraud further, but that owing to Mr Tomar steadfastly refusing to grant LEO without an undertaking from Mr Unnikrishnan to get the S/Bs amended the next day, the fraud attempted by Mr Unnikrishnan could not fructify. In other words, in the view of the Commissioner, an otherwise massive DEPB fraud was aborted - nipped in the bud, as it were - by Mr Sandhu and Mr Tomar. 34. We may, even at this juncture, deal with the grievance of the Revenue, regarding the exoneration of Mr Sandhu and Mr Tomar. Though it is alleged that two sets of invoices and Annexure-"A" were prepared by Unnikrishnan on his office computer, no evidence of generation of two sets of invoices could be produced despite seizure of CPUs of office computers of M....
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....hen it comes to deciding against the appellants. What is sauce for the goose must, necessarily, be sauce for the gander as well. (b) In para 2.26 of the impugned Order-in-Original, the Commissioner holds thus: "The statement dated 05.08.03 wherein Mr Unnikrishnan admitted about his role in this act of fraud in the impugned exports has been corroborated in the statements given by Mr Marshall Machado, Mr Hillary Miranda, PO, Customs, Mrs S.S.Das, Appraising officer, Mr Asif Ahmed Khan, Mr Sanjay Singh, Mr Bakul Parekh, Mr Abhijit Surve, Mr Vilas Khaire and by his own subsequent statements. The statement is also corroborated with the telephonic printout." This finding of the Commissioner, unfortunately, entirely misunderstands the very concept of "corroboration". In its recent decision in Sita Ram Sao v State of Rajasthan, IX (2007) SLT 525, the Hon'ble Supreme Court pithily encapsulated the idea of "corroborative" evidence, in the following words: '22. The word 'corroboration' means not mere evidence tending to confirm other evidence. In DPP v. Hester (1972) 3 All ER 1056, Lord Morris said : "The purpose of corroboration is not to give validity or cre....
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....ajeev Agarwal, it was averred that Mr Agarwal was "willfully avoiding to appear to give his statement as required". Per contra, in the same application, another affidavit, dated 23.9.03, was filed by the DRI, asserting that Mr Agarwal "had been appearing before DRI, even without being summoned". In the Show Cause Notice, dated 4.11.03, it was asserted, again per contra, that Mr Agarwal "has yet to appear before DRI". (d) In the corrigendum, dated 19.12.03, issued to the Show Cause Notice dated 17.12.03 proposing extension of time under Section 110(2) of the Act, it was stated that the Hon'ble High Court had "admitted" the application of the DRI for modification of its earlier order dated 4.8.03. No such "admission" had, however, taken place; the application was merely adjourned. (e) In the same application, the DRI studiedly concealed, from the Hon'ble High Court, the fact that it had challenged the earlier order, dated 4.8.03, before the Hon'ble Supreme Court, and that the said SLP was pending. (f) The order, dated 17.7.03, passed by the learned ACMM, clearly found that third degree methods had been employed to extract, from Mr Mufazzal Hakim....
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....degree treatment to which Mr Unnikrishnan was subjected - and, we must state, the learned DR, too, did not choose to join issue on this factual position. Clearly, therefore, the reluctance, of the DRI officers, to record the statement of Mr Unnikrishnan in jail - having themselves applied for and obtained such permission from the learned ACMM - has to be attributed, as they rightly averred, to the presence of the jail officials at the spot - only because, possibly, the presence of such officers would not have been "conducive" to inflicting, on Mr Unnikrishnan, the treatment which they intended to inflict on him. (h) Having inflicted the above atrocities, the DRI did not shy from refusing to receive the order, issued by the learned ACMM, for the production of Mr Unnikrishnan, either. The learned ACMM has noted, as much, in his order dated 7.8.03. (i) We were also piqued - though not, perhaps, unexpectedly - to find that, on the body of the summons, dated 17-12-03, issued to Ramesh Ashar in the present case, the DRI officers have, in an uncharacteristic display of frankness, recorded that they were unwilling to record his statement as he produced order o....
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....an, illegal and unconstitutional means, unknown to any civilized system of law. The reliance, by the Commissioner, on the said statements has, therefore, to be held to be entirely misplaced. We place reliance, in this respect, on the judgement of the Hon'ble Supreme Court in Sevantilal Karsondas Modi v State of Maharashtra, 1999 (109) ELT 41 (SC), which was rightly pressed into service, before us, by learned Counsel appearing for the appellants. We also do not find any merit in submission of Ld. DR that Unnikrishnan was absconding, as he was availing remedies before Hon'ble High Court and Supreme Court during the relevant time, and on failure he himself surrendered before Magistrate. 38. Coming, now, to the substantive merits of the matter, we feel, on a perusal of the facts of the case, that a mountain is being made of a molehill. The case against all the appellants, to one extent or another, is that of an attempt to avail irregular DEPB credit. Though some discrepancy is quantity is also alleged [with which we would deal later], the main case of the Revenue is one of alleged overvaluation of the export goods by the exporters. The Commissione....
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....from "per piece/per pair" to "per dozen" and that the quantity got changed to "dozens" because of the peculiarity of the EDI system. If such a change had admittedly occurred at the stage of applying for amendment, it goes without saying that the same peculiarity in the EDI system would have asserted itself at the time of initial generation of Check List as well. It is not a matter of dispute that the Check List, as initially generated, showed the quantity and rate both on "piece/pair" basis, i.e. the quantity was in "pieces/pairs" and the rate was in "per piece" or "per pair". The appellants submit that, though, in Annexure 'A' submitted with their declaration, they had declared the rate in "per dozen", the EDI system automatically converted it into "per piece" owing to its peculiarity, while the Commissioner holds that this was not so, and that Mr Unnikrishnan had submitted the rate in "per piece", along with a "per piece" invoice, secreting the "per dozen" invoice, as it were, in his pocket, for production at a later stage. However, neither Annexure 'A', as submitted by Mr Unnikrishnan, nor the "per piece" invoice allegedly furnished therewith, are either ....
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....tly, accepted the bona fides of Mr Tomar, and the fact that he had granted LEO on the basis of Mr Unnikrishnan's undertakings. It is nobody's case - not even that of the Department in their appeal before us - that, between the grant of LEO in the evening of 13.5.03 and the allowing of amendment of the S/Bs on the morning of 14.5.03, a sinister conspiracy was hatched between Mr Tomar, Mr Sandhu, Mr Unnikrishnan and Mr Agarwal, to fabricate documents so as to get the amendment through. That being so, the entire story of fabrication of documents, by these persons, after the allowing of amendment by Mr Fernandez, has to fall to the ground on this score as well. 42. As against this, the Revenue relies mainly on the statements of Marshall Machado, Hilary Miranda, S.S. Das, Asif Ahmed and Kamlesh Gaur. We have already expressed our reluctance to decide the present case on the basis of statements, as the issue in controversy mainly centres around documents, and the evidentiary value of statements, insofar as they depose regarding contents of documents, is, if at all, very slight. The circumstances of the case, and the documents produced before us, as ....
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.... issue, too, in our view, eviscerates his statement of all credence. These findings are, of course, apart from the primary issue that, in the absence of the actual Annexures 'A' and 'D', and the invoices submitted therewith by Mr Unnikrishnan, the statement of Mr Miranda, regarding the contents thereof, cannot be relied upon. (iii) The statement of S.S. Das has been perused by us. We find that no evidence of any query or any answer to the same by Unnikrishnan, which ought to have been available in Service Center in EDI system, has been produced. Moreover, she remembers the shipping bills for dock stuffing procedure, whereas admittedly the subject shipping bills were for factory stuffing procedure. Therefore, in the peculiar facts and circumstances of the case much credence can not be given to her statement. (iv) The statement of Kamlesh Gaur, Gate Preventive Officer, in our view, supports the case of the appellants, rather than that of the Revenue, as he has categorically admitted seeing the examination report of Mr Sandhu on the back of the invoices, and tallying the number and details of the container, as mentioned therein, with the S/Bs, before allowing entry into th....
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....nce of any material corroboration his statement cannot be believed as true and voluntary in the peculiar facts of the case. De hors our earlier findings regarding the intrinsically unreliable nature of the oral evidence relied on by the DRI, especially in view of the manner in which such statements were extracted at least in the case of Mr Unnikrishnan and Mr Mufazzal, we, therefore, find that even on merits, that the statements relied on by the learned DR to advance the case of the Revenue, is of no consequence. 43. We may note, at this stage, that the Show Cause Notice, dated 17.1.04, issued to the appellants, was followed by an Addendum dated 5.11.04, which did not contain any fresh proposals, but add certain paras to the main Show Cause Notice. Of these new paras, Paras 87A(I) to 87A(VI), 89(I)(ii)(a) pertain to S/Bs, which do not form subject matter of any of the proposals in the main Show Cause Notice; accordingly, in our view, they are entirely irrelevant for the present case. Para 89(II)(i)(a) and 89 (II)(b)(i) appear to have been inserted only to again implicate Mr Rajeev Agarwal without any further material; no separate findings are called for in this re....
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....acts, we are not persuaded to accept the allegation of the Revenue. There is no explanation for the issuance of cheques by Rushi to Ramesh Ashar, if the latter did not sell the goods to the former, even though the cheques may have been subsequently dishonoured - which could constitute the reason for Rushi, later, disowning the goods. Moreover, the export of these goods would result in DEPB benefits to Rushi, and not to Mr Unnikrishnan or any other person, and it cannot reasonably be believed that Mr Unnikrishnan would take the risk - for, apparently, no reason whatsoever, if the case of the Revenue is to be believed - of making fraudulent exports, the DEPB benefits whereof would ensue to another. We therefore are convinced that Ramesh Ashar sold the T-shirts to Rushi and delivered the same to Unnikrishnan on behalf of Rushi; received there against cheques from Bakul Parekh and that Unnikrishnan was handling the export clearance of T-shirts on behalf of Rushi. 46. We also find, in this regard, that the "per piece" price of the items, on the basis of the amended S/Bs, more or less approximates the PMVs as stated in para 3.1 of the impugned Order, except in ....