TaxTMI 
TaxTMI 
2024 (9) TMI 256
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....tagged together. 2. I have heard Mr. Hirani in person, in pursuance of the permission granted to him by the Committee headed by the Registrar, Judicial (I), who upon interaction with him permitted him to argue the Appeals in person. Though the matter was heard and closed for Judgment on 30/11/2023, it was directed to be listed on 19/04/2024 under the caption "For Direction", as the record pertaining to the Appellant is bulky and assistance was required from Mr. Hirani as well as Mr. Venegavkar, who represented the CBI for its consideration. Thereafter, on updating the record by segregating distinct files, the matter was once again heard, with reference to the distinct original records and then reserved for Judgment. 3. Since the facts resulting into four different Judgments being delivered are in four Special Case Nos.50 of 1990, 51 of 1990, 49 of 1990 and Special Case No.78 of 1989, which are challenged through four different Appeals and since they are over lapping, for the sake of convenience, I shall first refer to the facts in Criminal Appeal No. 466 of 1997, which has raised challenge to the Judgment of the Special Judge in Special Case No.78 of 1989 (RC No.66/1987). ....
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....f the petition was also forwarded vide letter dt.25.2.87 by M/s.Kantawala & Co. to the A/c Customs (Legal). Bombay where a new file was opened on the subject vide No. COM-4135/87 dt.27.2.87. After hearing the aforesaid petition on 24.3.87 Her Ladyship Justice Mrs. Sujata Manohar of the Bombay High Court was pleased to grant an interim relief in terms of Para-C of the Prayers directing the Custom Department, Bombay to refund the amount claimed by the Petitioner as per particulars given under "Exch.N" subject to verification latest by 15th May 1987 and in default thereof to pay interest 15% per annum from 15.5.87 till payment would be made. A copy of the ad-interim order of the High Court was served upon by the Bombay Customs. Mr. K.C. Sidhwa, Sr. Central Govt. Advocate, thereafter, he sent a letter dt. 25.3.87 to the A/C Customs (Legal) stating therein the Interim relief given by the Bombay High Court and requested the A/C Customs to send para-wise comments for the purpose of filing an Affidavit in reply to the petition. On receipt of order of the Bombay High Court granting interim relief to the Petitioner, Mr. Harcharan Singh, Appraising Officer of Bombay Customs made an endorsemen....
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....er Section 471 of the IPC. In addition, Accused Nos. 1 to 4 working as public servants, were also charged for committing an offence under Section 5 (2) read with Section 5 (1) (c) and (d) of the PC Act, 1947 as they faced charge of obtaining gain for themselves or for any other person due to the criminal conspiracy and by dishonestly and fraudulently misappropriating or otherwise converting the amount which was entrusted to them as public servants and allowing Accused No. 5-Mr. K.P. Shah to obtain refund orders. 5. The aforesaid charges are faced by the Accused in the background, which lies in Writ Petition being instituted before this court in form of Writ Petition No.745 of 1987, decided by this Court in its Ordinary Original Civil Jurisdiction on 24/03/1987. The Petition was filed by M/s Shah & Co. and the Court made the Rule returnable on 08/06/1987, by passing order in terms of the 'Minutes of Order' handed over to the Court and marked as 'X'. The Minutes of Order under the signature of Advocate for the Petitioner recorded thus :- "1. Rule expedited. Interim relief in terms of prayer (c) on Petitioners giving a personal bond in favour of the Collector of Customs....
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.... could claim exemption from payment of CVD/additional duty by virtue of Notification as amended from time to time and claiming that it is their statutory right to demand the refund of duty of customs paid, at the time of importing of the goods. A writ of certiorari was sought for quashing and setting aside the impugned act of Respondent No. 3. 7. The Petitioner in Prayer clause (b) and (c) specifically , specifically pleaded as under :- "(b) That this Hon'ble Court be pleased to issue a Writ of Mandamus or any other appropriate Writ, order or direction under Article 226 of the Constitution of India directing the Respondents, their officers, servants, subordinates and agents to immediately grant refund of the countervailing/additional duty amounting to Rs. 16,30,105.55 with interest thereon at the rate of 15% per annum from the date of the said application till payment. (c) That pending the hearing and final disposal of the Petition the Respondents, their officers, servants, subordinates and agents be directed by a Mandatory order and injunction to forthwith refund to the Petitioners the countervailing/additional duty amounting to Rs. 16,30,100.55 with interest ....
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.... of the duty of excise leviable thereon. The Schedule included all kinds of food products and food preparations, agricultural implements and parts thereof and Item No. 19 included, "all drugs, medicines, pharmaceuticals and drug-intermediates not elsewhere specified." On 08/05/1975, one page circular was issued, which clarified as under:- "PHARMACOPOEIAL DRUG IN BULK A bulk pharmacopeial drug, even if it contains single therapeutic agents, which is not in the nature of patent or proprietary medicine at the time of clearance, would not be covered by Item No. 14D itself. Therefore, the question of such bulk drugs being exempted under Notification No. 25/67 C.E. dated 4.3.1967 would not arise. Such bulk drugs would be covered under Item 68, provided they are otherwise classifiable under the said Item." 10. In the backdrop of the above Notification, Rakesh Enterprises, a Partnership Firm, registered under the Partnership Act, carrying its business at Mumbai, challenged the order passed by the Assessment Collector under Article 226 of the Constitution of India, wherein it claimed that Phenol USP is a basic drug or a pharmaceutical or a drug intermediate and as per the ....
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....I think, it will be appropriate that interest becomes payable after the expiry of the time given to the Respondents to make a refund. The other question is as to the rate at which interest should be made payable. Petitioners want interest to be calculated at the rate of 21% per annum. This is a patent exaggeration. The fair rate would be 12% per annum. The finding, therefore, is that interest will be payable at 12% per annum on the retained sums, on the expiry of the date to be specified in the order. 13. Before, I conclude, I will have to deal with a submission of Dr. Kantawala that Respondents be directed to deposit the cheques representing the sums payable unto Petitioners, in Court. The grievance is that despite orders, the authorities take their own time to comply with directions of the Court, thus compelling the successful Petitioners to take out further proceedings. I do not think that whatever may have happened in the past will be repeated in the instant case." The operative portion of the order read thus :- "Petitions succeed. The orders rejecting the applications for refund moved by the Petitioners, are hereby quashed. Respondents are directed to refu....
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....l relevant to the present writ petition was discovered. The bill of entry was filed by M/s B. Sorabjee and a partner of M/s B. Sorabjee & Co. gave a statement before the Customs authorities, where he has stated that bill of entry has been filed by his firm, but he has denied that his firm had filed the writ petition for refund of additional duty of customs paid in respect thereof and no refund of additional customs duty had been received by him. On 7th and 10th October, 1998, Kumar Shah made statement before the Customs authorities that he has filed the petition in the name of M/s B. Sorabjee and had shown one Harshad Jayantilal Shah as its sole proprietor and he has received the refund of Rs.28,609.05 that was ordered to be made by the order under appeal. It was also disclosed in the affidavit that the Customs authorities had seized from the premises of Kumar Shah, the original Writ Petition that was lodged and filed in the Court and which ought to have been in the court record, which had sought relief in form of directions to deposit sum of Rs.28,609.05, with further interest at the rate of 15% p.a. from 10/04/1987. The Court then made a reference to the statement of Kum....
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....toms authorities. Asked how he had managed to get the original writ petition from the court's record the said Kumar Shah stated that he had got it through Dr. Kantawala. This court's staff would not have entertained him directly so he had to make the approach through the advocate. As the said Kumar Shah used to receive large amounts from the Customs authorities by way of substitution of exhibits, it was felt that a substitution of the exhibits in the original writ petitions filed in court would help him and the advocate, should the fraud be detected by the Customs authorities. Dr. Kantawala was aware that he, the said Kumar Shah, had been substituting the exhibits of the original writ petitons filed through Mr. Kantawala and, therefore, Dr. Kantawala had agreed to help him. The original writ petition had been received by the said Kumar Shah from Mr. Kantawala. The said Kumar Shah had requested Mr. Kantawala to get the original writ petition from the court. He did not know how Mr. Kantawala had obtained it. The photocopy that he had obtained of the original writ petition had been obtained unofficially with the help of Dr. Kantawala's staff. Both the original writ petition as well as....
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....ntawala, the Advocate. The Court also concluded that Kumar Shah or some other person forged the signature and falsely verified the original writ petition and obtained an order, directing the Customs authorities to fund the amount due "as per Exhibit 'E' to the petition" and Kumar Shah recovered the amount of refund. Further, it was also noted that Mr. Shah substituted Exhibit E in the copy of the writ petition submitted to the Customs authorities and now Exhibit E quoted the sum of Rs.14,83,730.22, due against 106 bills of entry. 16. The Division Bench recorded that the complicity of the members of the staff of Customs authorities in the substitution is evident, though it is not clear whether the amount in the substituted Exhibit E was received by Mr. Shah. Recording that the intention was to effect substitution of Exhibit E in the original writ petition, so that in accordance with the substituted exhibit, the refund can be claimed and mentioning in the writ petition that the refund amount shall be as per Exhibit E, without setting out what the amount was, the fraud was played upon the court. Being tormented, as the Court was used as a medium to commit forgery, in a very ters....
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....e Customs Department and this Court by unscrupulous method. It is not possible for this Court to ascertain who are the persons responsible and who have participated in the large fraud committed on the Customs department and this Court. Therefore, we direct the Commissioner of Police to investigate the matter and launch the prosecution against every person who has been involved in the activities and secured wrongful gain. We request the Commissioner of Police to depute a senior officer familiar with detention of cases of such nature and direct him to undertake the investigation after registering the complaint, and thereafter proceed against every person who is found guilty of the commission of the offence. The entire record in respect of this petition and appeal shall be forwarded by the Prothonotary and Senior Master in a sealed cover to the Commissioner of Police. The Commissioner shall inform this Court the steps taken in pursuance of this judgment. The Commissioner of Police may record statements of any person who could throw light on the fraud perpetuated. The advocate for Union of India shall also assist the Commissioner of Police in ascertaining the modus operandi adopted by ....
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....s Terminal Operator, who was given additional duty on the legal side of Customs Department as LDC during the year 1986-1987 is examined as PW 5, as he was under instructions to visit the Manifest Clearance Department (MCD) to get the documents as per requisition slip given to him. Another witness examined by the prosecution is Anil Nair, who was attached to Audit Section in Customs Department, working under UDC Mr. Ghag i.e. PW 2. Dr. Ishwar Singh Balwant Singh attached to Legal Cell of Customs Department as Appraiser, who was assigned the task of filing Appeals against the order of learned Single Judge of the High Court to its Division Bench, is examined as PW 7. PW 8 Venkappa Rai, is the Deputy Office Superintendent (DOS), serving in the Refund Department of Customs Department, who was assigned the task of supervising the work of UDCs and LDCs. PW 31 Yashodhan Parande serving as Deputy Collector, Customs, is also another witness who is examined to establish the procedure adopted for refund. The aforesaid witnesses are examined for establishing the working pattern of the Customs Department and as to how the files travelled from Legal Department to the Refund Departm....
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....ustoms (AC) (Refund Department), the present Appellant, Accused No. 2 working as Appraiser (Refund Department), whereas, Accused Nos.3 and 4 were working as UDC and LDC, in the Refund Department. Mr. K.P. Shah is a private party who had obtained the Refund Orders by filing the Writ Petition in the Bombay High Court and the accusation faced by all the accused persons was of hatching criminal conspiracy to cheat the Customs Department in getting the refund of Rs.16,30,105.85 by substituting the original Writ Petition No.745 of 1987 from the Custom file and substituting it with a fake one. 24. The prosecution alleged that Accused No. 5, Proprietor of M/s. Shah & Co. filed a Writ Petition No.745 of 1987, by relying upon the decision delivered by the Bombay High Court in Writ Petition No. 1808 of 1982 dated 12.08.1986, thereby declaring that the import of 'PHENOL USP' is not liable for countervailing duty under Section 3 of the Customs Tariff Act, 1975, and praying for a similar relief of quashing and setting aside the impugned action of Respondent No. 3 i.e. the Assistant Collector of Customs, in levying the customs duty and therefore, seeking its refund with interest at the rate of....
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....nd orders have been passed. We propose to take similar orders in this matter also as it is on similar footing." This Petition, in a cyclostyle format, had a typed paragraph No. 1, giving the description of the Petitioner and the product viz. PHENOL USP alongwith the payment of countervailing/additional duty being paid, in the Petition and prayer clause (B) of the cyclostyle Petition claiming a refund of Rs.16,30,105.85 with interest thereon at the rate of 15% p.a. from the date of the Application till payment. Even prayer clause (C) had filled up the very same amount, a relief claimed by way of ad-interim relief. The Petition received was shown to have been affirmed by Mr. K.P. Shah, described as the Sole Proprietor of the Petitioners. Exhibit 'H' is alleged to be the substituted document in form of statement of refund amount and in utter contrast to Exhibit 'H' in the certified copy of the Petition which include 11 entries based on bill of entry, totaling to Rs.1,31,319.14, Exh. 'H' include 121 entries of distinct dates reflecting distinct payments totalling to Rs.16,30,105.85. 26. This Petition is accompanied with distinct forms of Application for refund by giving differ....
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....nt witnesses working in the Legal and Refund Department of Customs. It is evident, from the evidence of these witnesses that after the judgment/order was passed by the High Court, a copy of the Writ Petition was served in the Customs Department and was subsequently forwarded to the Legal & Audit Departments and thereafter to the Refund Order Cell. PW 7, Ishwar Singh Balwant Singh attached to Legal Cell of Customs Department, as an appraiser was entrusted with the task of filing Appeals against the orders of the learned Single Judge of the High Court, through the Division bench. He referred to Exh.22 as the starting point of the file and identified the endorsement by Harcharan Singh, an appraiser in the Legal Cell, as they were directed to prepare the grounds of Appeal urgently against the order granting interim relief. By the second endorsement on the file made by him, it was forwarded to the Refund Department for calculation of refund and he has deposed that it was done after discussion with the Assistant Commissioner (Legal) who made an endorsement about the order being an interim order. He has deposed that implementation of any court order is done by the Assistant Commissi....
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....itioner's Advocate upon the Custom Department i.e. in the office of Assistant Collector of Customs in the Legal Section. 30. Once the file is transferred from Legal Department to the Refund Department, the Deputy Office Superintendent (DOS) i.e. PW 8 sprung into action. It was his job to supervise the job of UDCs and LDCs. When he was confronted with Exh. 20, he admit that he had initialed the refund order next to the signature of UDC below the signature of Appraiser, and after seeing what was filled by the clerk, he would put it before the appraiser and the appraiser signed the order thereafter. According to PW 8, he was not sure who made the calculations annexed to the refund order, showing the total amount to be refunded. On being confronted with Exh.21(colly), he identified the endorsement "DOS/Pre-audit for n/a pleas in blank ink and identified his handwriting as well as his initials". He also identified the endorsement showing "Ms. Balani for issue of R.O". According to him, after his endorsement, the file went for pre-audit and the stamp of pre-audit reflected so. Thereafter, it came back to R.O. cell and he made the second endorsement after the file was pre-audited fo....
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....and he assertively stated that he identified his signature, as his signature was known to him. 33. The next relevant witness in sequence of the manner in which the file is processed, is PW 2 Vijay Ghag serving as UDC in Refund Order Cell of Customs Department, and when he was shown the refund order dated 16/6/1987, he identified the signature of Appraiser H.K. Hirani, but deposed that he was unaware as to who had prepared the refund order and he was unable to identify the two other signatures on the refund order (Exh.20). He was also unaware as to who had made the calculations which were attached to the refund order. PW 2 referring to the signature of AC(R) where 'R' is struck off, depose that according to him, it was not R.K. Vig's signature, though it was the signature of A.C, and he also identified the endorsement in the handwriting of Maya Kotwani along with the signature of the DOS as well as stamp of pre-audit by the Audit Section. Very categorically, he deposed that he could not identify any signatures from that section, except the last endorsement in the handwriting of Appraiser H.K. Hirani, which is initialed and signed by him on 2/6/1987 and 12/6/1987. PW 2 wa....
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....entry in the bunch, he deposed as below:- "15. (shown Ex-29 121 bills of entry in the bunch). These bills of entry came to me after the amounts were worked. I had never prepared any requisition slips for these bills of entry. The amounts were not worked out on the bills of entry themselves. They were worked out in the note sheet in the file. The amount which was worked out when the file came to me was as mentioned in the endorsement dated 12/6/1987 on pages III and IV of Exhibit-22." 34. Mr. Rajesh Singh working in the Computer Department of Customs, given Additional temporary duty in the legal side of Customs Department as LDC during 1986-1987, and who used to go to the Manifest Clearance Department (MCD) to get the documents when the requisition slip was given, is examined as PW 5. When confronted with Exhibit-22, he admit that he had signed at the foot of it and identified the first endorsement thereupon. When confronted with Exh.22C, he deposed that the bills of entry mentioned in this endorsement, were not seen by him before he made the endorsement but he did so as per the say of the superior. When the Court questioned him, who was the superior, he informed that it....
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....is duly examined by the Legal Section of Bombay Customs, to decide whether to accept it or to file an appeal. If the order is to be implemented, the papers are passed into the refund section for processing and making the refund order. Thereafter it is for the fund section to scrutinise various docs. and refund the admissible amount. By docs. I mean the copies of the bills of entry, the original, the duplicate as well as the triplicate. They are required to examine and verify the claims specially after checking the triplicates. Because that is the party's copy of the bill of entry. That is the receipt of the party of the payment of custom duty. That party being the party named in the triplicate bill of entry is the one entitled to the refund of custom duty. Being the party who paid the duty. As far as I know the scrutiny is done by the Appraiser. TO COURT: (The party not named in the triplicate bill of entry will not be granted refund of the customs duty even if he produces the triplicate bill of entry and even if the payment under that bill entry has not been made before unless he is a high sea purchaser. Therefore the production of triplicate bill of entry is a m....
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....ip, he used to trace the bills of entry, keep the requisition slip in the place of the bill of entry and then give original bill of entry to the Clerk. He was unable to state when the original bill of entry would come back to the department, but was aware that after closing the file, if the bills of entry were detached, then they used to come back and unless the bills of entry came back, the requisition slips remained in their place in lots forever. He deposed that some day, he used to receive 5 or 6 requisition slips and on some day, he would receive 100 requisition slips from various departments, but he was unable to state, whether he received 100 or more requisition slips at any time on any date from a single clerk of a single department. He also is unable to depose as to who brought the requisition slip to his department from the refund department, but vaguely stated that, he may be the despatch peon or clerk of the department. He also admit that he would not make any noting, mark or initial on the bill of entry, while giving it out. When he was confronted with 121 bills of entry, asking as to whether these bills of entry were given out by him, he answered in the negative....
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....rtment. The Directorate of Inspection (Customs and Central Excise) has evolved a procedure for expeditious disposal of refund claims. This procedure contemplates a centralised section for processing all refund claims. The Board recommends its adoption with whatever changes that may be found necessary in the light of local conditions and experience. The adoption of the centralised system at all costs (irrespective of what might have been found the best system according to local conditions) is not, however, recommenced. (Board's F.No. 21/67/60-Cus. IV dated the 13th June 1961 (Inst.NO. 4/61.) Procedure for processing of refund claims The receiving clerk in the (centralized) refund unit shall- (a) receive all the claims (preferred in the proforma prescribed). (b) stamp them with date and serial number. (c) enter them in the "Refund Register" (Annexure 'A') having serially numbered pages (which shall be duly certified on the fly-leaf of the register.) (d) fill up a cyclostyled acknowledgment memo (Annexure 'B'). (e) at the end of each day put up to the ministerial supervisor all the claims received during the day t....
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....n 149 Customs Act, 1962) and if competent pass and sign orders rejecting such claims; if not put up such cases to the Asstt. Collector-in-charge for rejecting the same, and signing the rejections order (Annexure-'E'). (iv) verify in respect of other claims, where : (a) any further information or documents are required from the claimant (like invoice, freight memo, bank certificate, correspondence etc.). (b) any documents or other proceeding like original or duplicate bill of entry, similar case dealt with in the past, case file containing a decision on similar issue or having a bearing on the claim, test report etc., required from the Department. (and then fill up a requisition for such documents and return the case file to the concerned dealing clerk for necessary action. Copies of such requisition will be kept handy (Annexure-'F' for (a) and usual requisition for (b). ... ... .... (6) As soon as all the information/documents required become available, he shall finalise the scrutiny of the claim and either take a final decision himself if he is competent or submit the case file together with his recommendations direct to the co....
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....completed within another prescribed time limit and all the claims so reviewed should then be submitted to the Asstt. Collector Audit for conducting a second-review. The second review should be completed within a prescribed time limit and the cases finally passed in audit should be sent back with a clear indication of passing in pre-audit to the refund unit for taking further action. (13) After audit the refund voucher prepared in the prescribed form shall be despatched by the dealing clerk in the refund unit to the claimant, for obtaining payment or getting credit in his deposit account (if such an account exists) from the Custom House treasury, on presenting it, after pre-receipting in the cash and accounts department of the Custom House. Obtaining credit in deposit accounts should be encouraged as involving less work all round and less delay. The dealing clerk shall at this stage obtain the counter signature of the Appraiser against the relevant entry in his case register. (14) The relevant case file shall then be sent back to the audit department for post-audit after the refund has been paid or credited to deposit account as the case may be, and the concerned v....
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.... in his deposit account from the Custom House treasury, on presenting it, after pre-receipting in the cash and accounts department of the Custom House. 42. From the evidence brought on record, it is clear that this process was not adhered to in either of the cases and it is worth to note that hundreds of writ petitions were filed in the year 1987 and in fact no one knows the actual number, but on record there is a list of 72 petitions filed in the name of distinct entities and amongst these, against the interim order passed, Appeal has been preferred only in four cases i.e. in the case of M/s Abad Fisheries, M/s B. Sorabjee and M/s Chandulal Nalwani. Every file received a number in the Legal Department and it is to be noted that Writ Petition Nos.743 of 1987, 744 of 1987, 746 of 1987, 748 of 1987 and 2392 of 1987 are filed by M/s Shah & Co. From the record available before me, I have perused two important exhibits i.e. Exh.20 and 20A which are concerned with Writ Petition No.745 of 1987, where by the original refund order bearing No.C004135 of 87 R.O. duty 1561 to 1681/87 for Rs. 16,30,105.55 was issued in favour of M/s Shah & Co. This document was handed over by Assistant Co....
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....n appeal filed by the department against the judgment of Pendse, J. in M/s Rakesh Enterprises". Below the above typed note, there is a handwritten note to the following effect :- "As per Exh. H, refund claim pertain to the year 1984. Refund Section to verify this from the original bill of entry before allowing refund. The minute prepared by the counsel for the petitioners submitted for order please." Down below is the signature of A.C.(Legal) dated 26/03/1987. Thereafter, the D.C. (Legal) has signed the same on 18/05/1987 with a following noting on page 3 :- "A.C. (R) is requested to implement the Court's order. Dated 20/5" Thereafter, there is a noting of R.O. Cell to the following effect :- "Please ask the party to submit the triplicate bill of entry and issue requisition slip as per the details shown in Exh. H." Down below is the noting of A.C.(R), which is identified to be of Mr. Vig (Accused No. 1) to the following effect :- "Kindly see the Collector's approval on previous page for implementing the Court's order in W.P.No.748/87. As per the minutes of the Court's order, the CVD collected on the goods 'Sorbitore U.S.P.' w....
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....d to M/s. Shah & Co., 33, Daryastan St. 202 Cutchi lohana, Mahajan Bldg. , Bombay-400003, with 4 attched handwritten sheets indicating R.O. No. Cash No. date, and amount (S.No. 1 to 121) Handed over by SD/- R.M. Rajadyax Asstt. Collector of Customs Taken over by Sd/- Shri M.B. Godbole Dy. Sp. CBI. Bombay Central Intelligence Unit" 45. The Refund Order (Exh.20) to the tune of Rs. 16,30,105.55 is signed by, for Assistant Collectors and of Customs, Refund Order Cell Bombay on 16/6/87 which is accompanied with a receipt of the same, by the Proprietor for Shah & Co. dated 18/6/1987. 46. In this background, with the original documents placed before me, I must once again turn myself to the evidence of the relevant witnesses. PW 2 the UDC in the Refund Order Cell when confronted with the Refund Order No.C004135/87 has deposed that it is signed by Shri Hirani, though he pleaded ignorance as to who has prepared it. Surprisingly, on the Refund Order, there are two other signatures on the left side, but PW 2 has failed to identify two other signatures. He is also unaware as to who made the calculations, which are attached to the Refund Orde....
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....dentify the hand-writing on the reverse of 121 bills of entry (Exh.29). 47. PW 4 Savitri Lala, the Technical Assistant, had deposed about the process that was to be followed when documents and letters were received in the Legal Cell from the receiving clerk including the court matters. In case a Writ Petition was received, its entry was taken in C Register and the papers were sent to the Appraiser. It is Mr.Harcharan Singh, who was working as Appraiser according to this witness, and he used to attend the Court matters. On confronting with Exh.21, she deposed that Harcharan Singh had made the endorsement and even the blank spaces in the type-written portion was filled by him. In addition, she specifically stated that lower portion of the page is also written by Harcharan Singh and the endorsement on page 1 of the Note-sheet (Exh.21) is the signature of Harcharan Singh. On Page 2 of the Note-sheet, she identified her signature on the left side below the signature of Harcharan Singh. The noting in the black ink on the lower portion of Page 2 is identified by her to be of A.C. of Legal Cell, Mr. Jagdishchandra, who put his signature and marked it to D.C. (Legal), who signed it on 18....
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....was shown the Writ Petition copy in the file, she stated that there is no endorsement of Legal Cell on any of the pages of the Writ Petition and she cannot say whether the copy of this Writ Petition was served alongwith letter (Exh.17). The copy of the Writ Petition in the Customs file yet unnumbered, is not identified by the witness as the copy received alongwith the letter (Exh.17). In the cross-examination on behalf of Mr. Hirani through Advocate Mr. Mirajkar, when she was confronted with Exh.21 (colly), she has deposed as under :- "11. (Shown Ex-21 colly). The file was opened alongwith the noting on page 1. The Legal Cell prepares the format with the relevant blanks as on page 1 of this exhibit. I am not sure whether these format were prepared because a large number of Writ Petitions were being filed against the Custom Dept. pertaining to refund meeting at that time. Upon looking at Ex-17 read with Ex-21 I can say that the file remain in the Legal Cell from 27/2/87 when the Writ Petition was received till 20/5/87. When the file was forwarded to the Refund Dept. During this period the file was seen by the various officers in the legal cell whose endorsements are m....
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....rrect that you would be saved from contempt only if you would comply with the Order (It is not for the witness to answer how ultimately he would be saved from contempt. Hence question disallowed). TO COURT : (I would also get the copy of the Writ Petition as well as the copy of the Order in the file alongwith the notesheet when I am asked to draft the appeal. That copy of the Writ Petition is a copy which is served by the petitioner's advocate upon the Custom Dept. That Writ Petition would be served in the office of the Asst. Collector of Customs in the Legal Section. Shown Ex-18, the letter of the petitioner's advocate dt. 25/2/87. (I do not remember which stamp is put by the legal section but the stamp is put on the advocate's letter showing receipt by the legal section of the customs dept. I cannot identify the initial on the stamp in the letter dt.25/2/87. It is correct that Writ Petition has showed the article like a phenol etc. for which it is filed)." 51. PW 8, Venkappa Rai, Deputy Office Superintendent (DOS , on being confronted with Exh.20, has admitted that he had initialed the Refund Order next to the signature of the UDC and below the signa....
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.... of entry placed on record. As far as Exh.20A, computation of refund fee is concerned, none of the witness has deposed that it is prepared by Mr. Hirani. In the whole chain of events when the file travelled from Legal Cell to Refund Cell on passing through the Audit Department, nobody has deposed that it is Mr. Hirani who is solely responsible for refund as Exh.21 colly. and Exh.22 i.e. notings establish the journey of the file and various endorsements from PW 2-Vijay Ghag, UDC, PW 4 -Technical Assistant and PW 8-DOS, the refund orders are processed. Merely because at the end of the whole journey, the Appellant. Hirani has signed as Appraiser and on his signature the final refund was granted, he cannot be accused of conspiring with Mr. Shah, the main accused, who ultimately received the benefits of refund order. The Refund Order (Exh.20) also has the signature of UDC, PW 6 and also of PW 8, the DOS. Though Mr. Hirani has marked on the file that the bill of entries should be called for, it appear that the said procedure was not followed and in fact, PW 5 Rajesh Singh who was assigned with the duty of going to MCD for getting the documents when the requisition slip was given , ....
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..... On being shown Customs File No. 4135, he admit that in this file he had typed "PHENOL USP" and had also typed the name and address of the Petitioners and filled up the blanks on the other pages of the documents. He also typed blanks in Form A which is the form for refund of custom duty and he also typed the statement of refund amount. PW 13 is not a typist, but he was entrusted with the job of filling the blanks by Mr. Shah. The Writ Petition in which he had filled in the gaps by mentioning 'PHENOL USP' is marked as Exh.41. When this exhibit is perused, it is noticed that in the cyclostyle format, barring the name of the Petitioner, and the introductory paragraph giving the description of the Petitioner, with reference to the product, the Petition's contents are identical to various Petitions which were filed before the Court. From Exh.41, what is relevant to note is Paragraph 14, which reads thus :- "The Petitioner say that it was incumbent upon the Respondents under the law for the time being in force not to have levied and collected the countervailing/additional duty and it was incumbent upon the Respondents to have refunded the duty amounting to Rs. 16,30,105.55."....
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....e was confronted with bills of entry (Exh.19 colly.) and after going through some of the bills, he deposed that he had not typed anything on the bills of entry, but he testified as below :- "We used to bring these types of bills of entry from the custom dept.". Responding to the Court query, he answered as below : "TO COURT : This was during the 3 months period that we went to the Customs Dept. almost daily. "After withdrawing the monies I used to hand them over to K.P. Shah." 57. PW 13 was a peon working with K.P. Shah, who according to him was in the business of chemicals and he was serving him till the prosecution was launched. When he was asked as to what business Mr. K.P. Shah was carrying, when for 3 months they were visiting the Customs Department daily, he deposed that he had no other business. In the cross-examination on behalf of Advocate for Accused No. 5 -K.P. Shah, he admit as below :- "The stencils for the cyclostyled papers used to be in the cyclostyling shop. Mr. Kantawala filed the writ petition. I do not know from where the stencils came. I do not know whether Hirani or Gandhi had any formal meetings or any busine....
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....hat the copies of the Writ Petitions, which were furnished to the Customs Department were at variance with the actual Writ Petition and while we are dealing with Writ Petition No. 745 of 1987, which was the subject matter of charge in Special Case No.78 of 1989 (RC No.66/1987), the petition in the Customs Department ( Exhibit 41), it had the figure of 16,30,105.55 mentioned in it as a sum of which refund was claimed instead of 1,34,319.14, which was the figure in the original Writ Petition (Exh.16), placed on record by P.W. 1. PW 13 has identified the copy of the Writ Petition, with the blank spaces typed by him, which claimed a refund of larger amount, and he even admit that the Exhibit-H, which was annexed to the petition, was also typed by him on the basis of the bills of entry, which were provided to him by K.P. Shah, through Accused No. 3-Yashwant Raghunath Naik. The modus operandi of Accused No. 5, has thus clearly surfaced as the Writ Petition, which was filed in the High Court was different than the copy of the Writ Petition, which was circulated to the Customs Department for implementing the orders passed by the Court granting refund of the amount and this included t....
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....ORATION LIMITED. 33. VISHAL DYE CHEM INDS. PVT. LTD. 34. ASSOCIATED BROTHERS. 35. DEVIDAYAL ELECTRONICS AND WIRES LTD. 36. MANGALYA TRADING & INVESTMENT PVT. LTD. & ORS." (b) The product in the Exh.16 is Phenol, whereas the product in Exhibit 41 is PHENOL USP. (c) In paragraph 14, of Exh.16 i.e. a certified copy of Writ Petition No.745 of 1997 reads thus:- "The petitioners say that it was incumbent, upon the respondents under the law for the time being in force not to have levied and collected the countervailing/additional duty and it was incumbent upon the respondents to have refunded the duty amounting to Rs.1,34,319.14". In contract Exh.41, which was the copy of the Writ Petition available in the Customs Department pleaded as under:- "The petitioners say that it was incumbent, upon the respondents under the law for the time being in force not to have levied and collected the countervailing/additional duty and it was incumbent upon the respondents to have refunded the duty amounting to Rs. 16,30,105.55". (d) prayer clause (b) and (c) of Exh.16 prayed for refund of countervailing additional d....
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....t did not sign the petition before him, though the petition was signed by him before the client signed it in the Court. He had also stated that the petition was verified and signed by his client K.P. Shah, before the then Associates Mr. Narvekar, but he did not identify the client, when he put his signatures on the Writ Petition before Mr. Narvekar as it is not the practice in the High Court for Advocates to identify their clients before the Associates, when the person signs before the Associates, he identify himself to be the said person. The Solicitor has admitted in cross-examination that the custom number is not mentioned in Exh. H, but by relying upon the application for refund and triplicate bill of entry, on the basis of which the person is entitled to get refund, the Writ Petition was filed. He also admitted that Exh. E to the Writ Petition filed by him, annexed one of the triplicate bills of entry and the stamp of the Customs Department reflected the payment of duty and that number is mentioned in 'Exh. H'. PW 1 has admitted that Exh.G is the triplicate copy because that is the only copy given to the importer upon which he claimed refund and the original and duplicat....
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....ution had taken place before it reached for processing in the Legal Cell of the Customs Department. It is Mrs. Laxmi Koli PW 3, who received the Writ Petition along with letter dated 25/02/1987 (Exh.17) on which she made the endorsement on the left hand bottom corner indicating that it was received in the office on 26/02/1987. This was an intimation about the listing of the petition for admission before the concern Court, with a request to remain present as the petitioner was desirous of obtaining similar order, which was passed in several cases. According to her it was the 8th letter, which was received by her department. It is from her, file No. 4135 of 1987 was sent to AC Refund. Though she state that she had written the number 745 of 1987 on the file, she had taken the entry in the register and expressed that it must be Mrs.Gopi her colleague, who had made the entry. She is unaware whether the Writ Petition was in the file. The manner in which the file was processed is evident from Exh.21 and Exh.22, to which I had already made a reference. 63. Exh.18, is the copy of Writ Petition No.745 of 1987 and during the cross-examination of PW 1, when the Accused No. 1, called upon....
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....tainty that it was Writ Petition at Exh.18, as what was endorsed was only Exh.17. 64. From the notings to which, I had made an exhaustive reference i.e. Exhs. 20 and 20 A, which is the calculation based on the Exh. H of Writ Petition No.745 of 1987, which included bills from 1 to 121 and the processing that was done in respect of the said bills, from the Legal Cell, and further by the UDC/LDC of the Refund Department, AC (Refund) Mr. Vig as well as the DOS, pre-audit and post-audit, I fail to understand how the appraisal Mr. Hirani, who has finally issued the refund order after it being processed at various levels could be held solely guilty of the conspiracy. The only reason appear to be the deposition of PW 13, who have deposed that he had seen Mr. K.P. Shah along with PW 2, but worth it to note that, he has also identified Accused No. 4, Mr. Gandhi. Merely, because two people are seen together definitely may not lead to a conclusion that they are part of a conspiracy and in fact since K.P. Shah was visiting the Customs Office every day for 3 months according to this witness, it is not unusual that if he need any person from the Customs Department, there would be some talk or ....
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.... the bill of entry for sum of Rs. 36790.72 (Exh.33), which was an entry regarding consignment of Phenol cleared on behalf of M/s Chemida Enterprises, a high seas purchase. According to him, it was sold to Pukhraj Engineering and chemicals at Kandiwali Bombay, who was the actual user and the custom duty was paid by demand draft by Puhkraj Engineering, and thereafter he cleared the goods on behalf of M/s Chemida Enterprises. PW 9 deposed that it was Puhkraj Engineering, which was alone entitled to refund of customs duty, which was paid in excess. He also produced the contract signed between Chemida Enterprises and M/s Puhkraj Engineering for goods mentioned in the bill of entry, Exh. 33. When PW 9 is confronted with one of the Bill in Exh.29 (colly), being the original bill of entry of M/s Chemida Enterprises stamped by the Customs Department for Phenol, he justified that he had submitted the original bill of entry to the Customs Department on behalf of his client M/s Chemida Enterprises and kept the duplicate initially with him. However, at the time of delivery of the goods, the duplicate was handed over to Bombay Port Trust (BPT) and delivery was taken on the basis of this bill.....
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....the basis of the cheque issued on RBI, is proved through this witness. 70. PW 23, the Manager of Punjab and Sind Bank, Fort Branch, in which current account in the name of M/s Shah and Company was opened, is examined as PW 23. This witness is also confronted with the original ledger, which was collected by the CBI during investigation and he has confirmed about opening of the account in name of firm Ashok Traders, which was signed by Mr. K.P. Shah in his presence. He was confronted with 14 paying slips and admitted the same from the ledger account. He was also confronted with various cheques credited in Account No. 3276 and admitted that they were transactions in normal course. On being confronted with the Refund Order dated 17/06/1987 (Exh.20), he admitted that he had put the stamp of his bank and the endorsement 'Signature of Shah and Company verified as per our record' and signed the endorsement on the right side of Exh.20. He admit that he verified two signatures of K.P Shah Proprietor Shah and Company on the refund order and tallied the same from the specimen signature card of his account in the branch. It is thus clear that all the refund orders were credited in two ban....
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....sserted that he followed the High Court order and sanctioned the refund to Shah & Co.. When specifically asked that the copy of the Writ Petition No.745 of 1987 served upon the Customs Department was not not the same, he has stated that he had nothing to say about the copy, as the copy on which the refund was granted, was received from the Legal Section of the Customs Department. He also denied that K.P. Shah had ever met him, as was told by PW 13 in his evidence. 73. Mr. Hirani has also filed his statement of defence dated 31/01/1997 (Exh. D-5) and also tendered two documents; one being the memorandum of Assistant Collector of Custom dated 01/12/1983 and the second was the letter of Mr. S.V. Singh of Commercial Clearing Agencies Private Limited. 74. In the statement of defence Mr. Hirani specifically narrated the procedure that was followed, when the Writ Petition was received in the Legal Department and he gave the following procedure. "(1) As far as I remember [copies of the W.P.'s and Bills of Entries original/duplicate's etc. and other relied upon documents are not so far given by the prosecution alongwith the Chargesheet] the petitioner (A-5) had claimed in the....
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....nd amount claimed by the petitioner and as directed by the High Court. The petitioner (A-5) got this opportunity to substitute the fake petition and obtain the original/duplicate Bills of Entries from the Customs record to prove that the petition and claim were genuine and hence pass the scrutiny of the Customs department. (2) ... ... ... (3) I wish to submit here that during the period i.e. 1987 (March to June) there was heavy rush of work on account of the Interim orders being passed by the High Court with limited staff i.e. (I) who was dealing with the implementation of the Time-bound court orders, it was not possible to look into the merit or demerit of each case. Each and every file was scrutinize with respect to the original/duplicate Bills of Entries claimed in the W.P.'s and accordingly submitted for examination and sanction of the Refund claimed. After due verification of all the process the Refunds were paid as per the Court's orders. None other than this Importer cheated the department as he (A-5) was well acquainted with the Customs working and procedure and thus could easily manipulate the records to get the Refund of other Importers to which....
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....cannot take place of proof. Merely because the Refund Order was finally issued under the signature of Mr. Hirani (Exh.20), he is held to have acted in conspiracy with Kumar P. Shah. It is no doubt true that there were 121 bills of entry, which were seized and they have been made part of the investigation and exhibited as Exh.29 (colly) and several of the persons concerned with the bills of entry like partner of M/s Chemida Enterprises, who had sold the commodities to Pukhraj Engineering and Chemicals have been examined. What the learned Judge has failed to note is the substitution of paragraph 1 in Writ Petition No.745 of 1987, as this paragraph made reference to 36 entities and these entities in connection with their business had in fact paid the custom duty and because of the decision of the High Court, since the duty was not to be leviable, they were entitled for refund. Admittedly the persons who paid custom duty, never claimed refund as per their depositions. However, it is K.P. Shah, who collected the information about the CVD paid by different entities, as the original and duplicate of the bills of entry continued to lie in the Customs Department, in Manifest Clearance....
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.... Mr. Yashwant Naik (Accused No. 3), who actually brought the bills of entry to Mr. Shah's office, received clear acquittal. 77. The learned trial Judge ought to have noticed that Exh.16 was the certified copy of the Writ Petition, which has been identified by PW 1 to be the one filed by him after the comparison with his office file, was totally different than Exh.41, which was the Writ Petition processed in the Customs Department and unfortunately, the prosecution has failed to establish as to at what stage this substituted Writ Petition came into system, as the Clerk (PW 3) who received the Writ Petition alongwith the forwarding letter, is unable to say which Writ Petition was received alongwith forwarding letter and Exh.41 is brought on record through PW 13, but fortunately Exh. H thereto tallied with Exh. H, which was processed for refund as at every stage and the amount in Exh. H was worked out and Exh.20A as well as Exh.29 (colly) demonstrate that 121 bills of entry were compared to assess whether custom duty has been paid, without ascertaining who had paid the custom duty. In paragraph 1 of the Petition (Exh.41), K.P. Shah & Co. has described itself to be an importer an....
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....ticular act. As far as Sections 467 and 468 are concerned, Section 467 punishes an act of committing a forgery of valuable security, will etc. where as Section 468 contemplates forgery committed intending that the document shall be used for the purpose of cheating. Since the prosecution has failed to establish that it is Mr. Hirani who was responsible for substitution of the original Writ Petition alongwith its annexures and specifically when PW 13 do not attribute any role to him, as he was the one who has admitted that he had typed Exh. H and also filled the gaps in the cyclostyle Petition, where the amount was filled in, it is highly erroneous to hold Mr. Hirani guilty of committing the offences under Sections 420, 467, 468 of IPC. Further, since the prosecution has also failed to establish that it is Mr. Hirani, who had fraudulently used the Writ Petitions, which he had knowledge or had reason to believe to be forged one, even an offence under Section 471 of IPC is also not made out. He is also found guilty under Section 5 (2) read with Sections 5 (1) (c) & (d) of the Prevention of Corruption Act, 1947, being a public servant, though there is absolutely no finding rend....
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...., therefore, his guilt is recorded under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 and is sentenced to suffer R.I. for three years. In Special Case No. 51 of 1990 (RC-28/88), Appellant-Hari Krishna Hirani faced the charge alongwith three other accused persons; accused No. 2-Rajendra Gandhi, accused No. 3-Yashwant Naik and accused No. 4-Kumar Prabhulal Shah. The charge in this case revolve around Writ Petition No.746 of 1987, which was filed by K.P. Shah in Bombay High Court on 25/02/1987, claiming refund of countervailing/ additional duty of Rs.74,200.82, which was indicated in Exh. H of the Petition for purchase of Phenol for 'M/s Cham Ice & Cold Storage'. The accused person faced the charge of substituting the Writ Petition alongwith its exhibits with fake/bogus exhibits, showing that Kumar Prabhulal Shah obtained an interim order for refund of Rs.11,35,384.32, as the CVD paid on import of Phenol and Mr. K.P. Shah, being shown as proprietor of 'M/s Shree Vidya Agro Chemicals'. Mr. Hari Krishna Hirani, who was arraigned as Accused No. 1, faced the charge of acting in pursuance of criminal conspiracy, by preparing the note-sheets of t....
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....gro Chemicals, also form part of the F.I.R., which was filed on 18/04/1988 on the basis of source information, setting the investigating machinery into motion. 83. The only difference in the case decided by the impugned judgment dated 26/07/1997 is restricting the number of witnesses to seventeen and though the Court Witness was also specifically examined. Except the Upper Division Clerk of the Refund Department (PW 2), no other person from the Department is examined in this case. Two officers from the two banks in which the cheque of refund of Rs.11,35,384.32 was deposited is examined alongwith the Manager of Punjab and Sind Bank, where K.P. Shah has various accounts as proprietor of various businesses. The officer of Syndicate Bank, the Deputy Collector of the Legal Cell to Bombay Customs were also examined as witnesses. The Sanctioning Authority and the Investigating Officers, who investigated and filed the charge-sheet are examined as PW 15 and PW 16. Mr. Somkant Satam, the Assistant Collector of Pre-Audit Section by Customs Department is examined as Court Witness. On conclusion of the trial, the finding of guilt in respect of the present Appellant, Mr. Hirani, is found only....
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....refore, the finding of conviction recorded against him under Section 120-B is liable to be set aside. For the reasons recorded in Cri. Appeal No. 466 of 1997, since the prosecution has failed to establish that he obtained in pecuniary advantage by misuse of his official position, his conviction under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 and the sentence imposed thereon is also liable to be set aside. By setting aside the Judgment dated 26/06/1997 in Special Case No.78 of 1989, Criminal Appeal No. 465 of 1997 is allowed. CRIMINAL APPEAL NO. 464 OF 1997 86. In this Appeal, the Appellant-Hari Krishna Hirani, has raised a challenge to the Judgment dated 26/06/1997 passed by the Special Judge in Special Case No. 50 of 1990 filed by C.B.I. Vide the impugned Judgment, the Appellant is convicted alongwith accused No. 3-Kumar Prabhulal Shah for committing an offence under Section 120-B of IPC and both are sentenced to suffer R.I. for a term extending seven years. In addition, the Appellant is held guilty and convicted for having used his official position by corrupt and illegal means for obtaining gains for himself and Accused No. 3....
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....was arraigned as Accused No. 1, pleaded not guilty and, hence, he was tried alongwith the other co-accused. The prosecution examined 19 witnesses in support of the charge and 3 witnesses were examined as Court Witnesses. 89. This case differs from the other two cases to which I have made reference, in a sense, that the charge levelled against the accused persons is, that despite no Writ Petitions being filed by Accused No. 3-Kumar Shah or served upon the Customs Department and in absence of any orders from the Court, directing payment of refund, the Appellant signed and issued various Refund Orders under various files of varied amounts, aggregating to more than crores of rupees, which were given to Accused No. 3-Kumar Shah, upon attestation of the bankers, who were in fact not the bankers of Kumar Shah and on the amount being deposited in the bank accounts, it was subsequently withdrawn. 90. As far as the evidence led in this case is concerned, Dr. Nitin Kantawala, the Solicitor, who was examined as PW 1, have denied filing of the seven Writ Petitions mentioned in the charge-sheet in the name of M/s Shree Vidya Agro Chemicals, Bangalore or Bombay or Thana. In cross-examinatio....
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....e bill of entry. The original and duplicate bill of entry were definitely there." 92. Responding to the Court Question as to without the triplicate bills of entry, how would one get the original and duplicate bills of entry, he stated that in case No. 49 of 1990, all the Refund Orders used to come to him for preparation with the original and duplicate bills of entry and when asked whether there was any note in the file for all these bills of entry, he was unable to answer, on the ground that no note-sheets of files are produced. He categorically admit that he prepared the Refund Order on the amount being written upon it and sent to him and he did not bother to see, whether A.C. has signed or not. When the amount was worked out, he was asked to prepare the Refund Order and he did not bother to see Legal Section files to know whether they contained the signatures of the Collector or not. He categorically submitted that some of the Refund Orders were pre-audited by Mr. Navani. A very significant statement from this witness in the cross-examination read thus :- "The despatch clerk Mr. Balani used to send the R.O. to the Pre-audit section for re-auditing. After I prepared th....
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....ed to the officer that after the approval of the A.C. Mr. Vig, the amount was sanctioned and the refund orders were prepared." She contradicted her statement in portion mark 'A' and stated that she do not remember, what she has stated to the officer and she cannot say, whether it is correct or not. Voluntarily she stated that the Officer had asked her the procedure and she has told him the procedure about the Refund Orders. Even, she is not aware of the Refund Manual. According to PW 3, the calculations which were kept alongwith the Refund Orders were not prepared by her except one calculation annexed to the Refund Order No. 3940/87 for Rs.10,30,104.70, but she could not identify the signature in blank ink, though she admitted that the signatures in the blue ink were of the Appraiser. 95. Mr. Anil Nair, working under Mr. Ghag (PW 2) and attached to the Audit Section, is examined as PW 4 and when he was confronted with Exh. 8 (colly), he admit that he had prepared 4 Refund Orders out of them, but had not prepared any statement attached to the Refund Orders. According to PW 4, the numbers as well as the parties name and the amount were given to him by Mr. Ghag and he only....
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....ly) and identified his signature and also with Exhs.35 and 36 and admitted that he opened all four accounts at the instance of Jagdishbhai and he met Mr. K.P. Shah in Punjab & Sind Bank, Fort Branch. He also admit that he never deposited or withdrawn any amount in any of the four accounts, but Jagdishbhai used to deposit the cheques and withdraw the amount. He was given commission of Rs. 8,000/- for his co-operation in opening four accounts of Jagdishbhai. 98. The key witness even in this trial is peon of Mr. K.P. Shah, Mr. Prakash Jaitpal, examined as PW 12. In his examination-in-chief, he testified that he was serving as a peon in Shah & Co. and that there were Writ Petitions filed by Mr. K.P. Shah in Bombay High Court through his Advocate Kantawala, claiming refund of custom duty. He categorically admit that he used to go with Mr. K.P. Shah to the Customs Department and also the banks and everyday, he used to go to his residence and then to his office. At his residence, he used to do typing work as he was entrusted the work of typing the refund applications and fill in the blanks in the exhibits. He was confronted with copy of Writ Petition No. 304 of 1987 in file No.COO39....
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....the handwriting. But these calculations were put up to him alongwith the R.O. for sanction. Q.14 Is it correct that these calculations were done by your office staff ? Ans Yes. Q.15 Who were office staff to make this calculations? Ans. Mr. Rai, Mr. Ghag, Mr. Nair and Ms. Kotwani (Shown Calculations to the second, third, seventh, nineth, twelfth and the last R.O.s) Q.16 These calculations are not signed by you. Therefore, would it be correct that they were not verified by you ? Ans. It is not correct that because I have not signed these calculations I have not check them. I have ticked the calculations. Two persons have ticked the calculations. I cannot say which are my tick-marks. Q.19 (Shown Ex-8 colly). Is it correct that the same person has signed the R.Os as having received the amount except the first R.O.? Ans. The R.Os never come to me after I signed. Q.21 How would you verify the name of the party? Ans I would verify from the Legal Section file and the copy of the Writ Petition. (Shown one R.O. from Ex-8 without Writ Petition number) Ans. The Writ Petition Number would be in the Legal S....
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....name of the petitioner and he would call for the bills of entry shown as Exh. D to the Writ Petition. Responding to the evidence coming from Mr.Jaitpal, the Appellant answered that he met Mr. K.P. Shah in the Department sometimes during the period of April to July 1987, when he came to pursue his refunds. In response to question No. 58, he answered thus : Q.58 PW Mr. Parande has deposed that a triplicate bill of entry is always required to verify and examine the claim of the party applying for refund because it is the receipt of the party of the payment of custom duty and shows that he is entitled to his refund. What do you have to say to that? Ans. Mr. Parande never worked in the refund dept. He never knew the refund manual. I distinctly remember the Court Order of Her Lordship Mrs. Justice Sujata Manohar that the refund has to be given without verification of the triplicate bill of entry as per the Court Order. We implemented the Court Order as per the directions of the Legal Dept." 103. It is pertinent to note that Mr. Kumar Prabhulal Shah passed away on 19/06/2021 and in fact the Appeal No. 472 of 1997 and other Appeals filed by him stood abated on 19/12/20....
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....rial Judge has wrongly interpreted the Rules and expressed dismay over the Appellant-Mr. Hirani, acting in absence of the triplicate bill of entry. In absence of any cogent and reliable evidence establishing conspiracy to cheat the Bombay Customs Department by fraudulently claiming refund of countervailing/ additional duty paid on import of goods and in this case, without filing of Writ Petition, the finding rendered in the impugned Judgment against the present Appellant cannot be sustained. The peculiarity of this case is, the entire record about the Writ Petition was missing from the Refund Section, but one thing is clear that the Refund Order cannot come into existence, without the relevant custom file, as it was bearing the number and as far as the Appellant is concerned, who was the Appraiser, he was to only sign upon the Refund Order upon the sanction accorded by the Assistant Collector of Customs in the relevant custom file. It is also to be noted that merely on the basis of the Refund Order, money cannot be withdrawn from the treasury of the Customs Department, as after the Refund Order is produced, the banker's cheque (RBI) was issued and which was deposited in the b....
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....en the year 1983 and 1986, as per the cash numbers shown and referred in Exh. 'H' to the Petition. The Bombay High Court passed an ad-interim order in terms of prayer clause "C" of the Writ Petition for refund of Rs. 34,396/- with interest at the rate of 15% p.a. and by substituting the Writ Petition, an amount of Rs. 3,34,918.60 was paid as per Exh. 'H', which referred to 21 cash numbers. The Appellant, being arraigned as Accused No. 1, was accused of issuing Refund Order in the sum of the aforesaid amount, without proper verification of the importer and the genuineness of the claim and did not call for triplicate copy of bill of entry from the importers and also deviated from the procedure laid down by the Refund Cell of the Bombay Customs. Worth it to note that Mr.Yashwant Naik is alleged to have played active role in substituting the original Petition with fictitious one and of securing the original and duplicate copies of bills of entry from Manifest Clearance Department, in support of bogus/fake claim of Mr. K.P. Shah, without requisition slips and in pursuance of the conspiracy, Mr.Gandhi was accused of illegally handing over the Refund Order to Mr. K.P. Shah. 105. In ....
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....mar Shah, after Pinakin Mody gave him those papers, but he had never given the papers to any Solicitor or Advocate. 107. On the basis of the evidence of PW 3 and PW 4, it is concluded by the learned trial Judge that the Petition was filed in the name of a ghost entity to claim the amount of refund and in the statement under Section 313 of Cr.P.C, Accused No. 4-Mr. K.P. Shah answered that he knew Mr. Pinakin Mody and the application for refund of Pinakin Mody was filed by him. He admitted that PW 4 given papers of M/s Jirat Chemicals for making application of refund and not for filing of the Writ Petition. It could be thus easily inferred that there was no Writ Petition filed by M/s Jirat Chemicals and its partners and Pinakin J. Shah was a fictitious entity, which was set up by Mr. K.P. Shah, in a unique way of claiming the refund in his name. From the evidence of Prakash Jaitpal (PW 15), once against the same modus operandi has featured before the learned Judge as Exh. 'H' was also a fictitious document. 108. The learned Judge herself called for Writ Petition No. 304 of 1987 from the record of the Bombay High Court to find that it did not reveal the address of the Petitioner....
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.... date and month in the Vakalatnama of the Writ Petition. He had put the number of the Writ Petition in the Index as well as in the affidavit-in-support of the Writ Petition and typed blanks in Exh.C and the particulars Exh. H to the Writ Petition. In addition, copy of the Writ Petition in file No. 3952 in which the handwriting as well as the typing, was identified by him. The testimony of this witness remains the same as in two other cases. The prosecution in addition to the Solicitor has also examined Mr. Vijay Ghag (PW 2) and he was specifically confronted with File No.COO-3958/87. He admitted that he had made noting on page No. 2 of the file and mentioned the amount of refund and the name of the party. He initialed on the said page on 20/04/1987 and the DOS had initialed below his name in blank ink. The Appraiser initialed on the right side below his endorsement on the same date and, thereafter, it was pre-audited. He was unable to identify the endorsement made after the stamp of pre-audit. When he was confronted with the note-sheet in the file, he identified his handwritten note, with the signatures of the Account's Clerk and Account's DOS, all dated 20/04/1987. His evide....