Custom, Excise & Service Tax Tribunal
Shri Suraj Prakash, Inspector vs C.C., New Delhi on 15 October, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
BENCH-DB
COURT NO.II
MA NO.C/M/50502/2014 in
Appeal No.C/551/2007
Customs Appeal Nos.C/481, 492, 491, 493, 551, 617, 483/2007-CU[DB]
[Arising out of Order-in-Original No.7.2007 dated 01.05.2007 passed by the Commissioner of Customs, ICD, Tuglakabad, New Delhi].
Surinder Malik
Subodh Kumar Pandey
Shri Vijay Gupta,
Shri Narinder Singh,
Poonam Chand Gupta,
Lalit Kumar Katoch,
Shri Suraj Prakash, Inspector Appellants
Vs.
C.C., New Delhi Respondent
Present for the Appellant: Shri. Dalip Singh (Proxy Counsel) Ms.Surabhi Sinha, Advocate Shri S.K. Pahwa, Advocate Present for the Respondent: Shri.B.B. Sharma, DR Coram: Honble Mr.D.N.Panda, Judicial Member Honble Mr.Manmohan Singh, Technical Member Reserved on: 31.07.2014 Pronounced on:15.10.2014 FINAL ORDER NOs.53952-53958, DATED: 15.10.2014 PER: D.N.PANDA MA NO.C/50502/2014 in Appeal No.C/551/2007 A Miscellaneous Application No.C/50502/2014 in Appeal No.C/551/2007, at Sl.No.226 of the cause list was filed. That was to raise an additional grounds under Rule 16 of CESTAT Procedure Rules, 1982 to the effect that recovery of excess payment of draw back shall be made from a person who had claimed that but not from others. Such averment being a legal point involved in the Appeal, that shall be considered while disposing the appeal. Accordingly, the Miscellaneous Application is allowed.
Appeal Nos.C/481,429, 491, 493, 551, 617, & 483/2007
2. Following appellants facing penalties of the quantum mentioned against each under section 114 of Customs Act, 1962 came in appeal before Tribunal:
Sl.No Appeal No. Party Penalty imposed Remark
1.
C/481/2007 Surinder Malik 15.00 Lacs
2. C/492/2007 Subodh Kumar Pandey 15.00 Lacs
3. C/491/2007 Shri Vijay Gupta, 15.00 Lacs
4. C/493/2007 Shri Narinder Singh, 50,000/-
5. C/551/2007 Poonam Chand Gupta, 15.00 Lacs
6. C/617/2007 Lalit Kumar Katoch, 50,000/-
7. C/483/2007 Shri Suraj Prakash, Inspector 1.00 Lacs
3. None appeared for surinder Mallik, Vijay Gupta, Subodh Kumar Pandey, Narinder Singh and Lalit Kumar Katoch. One Shri Dalip Singh, Advocate a proxy Counsel sought adjournment without mentioning under whose instruction he sought such adjournment and for what reason. Such prayer was not allowed considering the appeals were of seven years old.
4. Ld. Counsel Shri S.K. Pahwa arguing the appeal No.C/483/2007 on behalf of Shri Suraj Prakash, an officer of Customs submitted that he was an innocent Officer and not involved in the export made by Shri.Surinder Malik, Shri Vijay Kumar Gupta and Poonam Chand Gupta. Although there was mis-declaration of description of the goods as well as overvaluation of export, both in respect of live and past consignments alleged by Revenue, this appellant was not a contributory to the commissions or omissions alleged. He submitted that entire finding of the Commissioner recorded in para 115 of his order has no basis since this appellant had not manipulated any document in the computer nor also had any power to access into the computer. He was on duty merely to inspect the goods as that was directed to him by his higher authorities. Therefore, there should not be any penalty on him.
5.1 Ms. Surabhi Sinha, ld. Advocate arguing for Poonam Chand Gupta in Appeal No. C/551/2007submitted that this appellant was an Advocate. Except the legal assistance provided by him to his client, he was not involved in any of the mis-declaration alleged. He had no role to play in the export made. He was also unaware whether there was any higher drawback claim made by any exporter overvaluing the goods. He was not at all concerned with the same since he was not an exporter. According to her, it is settled principle of Rule 16 of Draw Back Rule that recovery of the drawback is to be made from the person who claimed the draw-back. This appellant not being claimant of the draw-back, is not answerable to the allegation of higher draw back claim made by anybody or any manipulation made by them.
5.2 It was further submitted by her that there cannot be a joint liability in respect of the draw-back claim made by a person since law is settled to bring the claimant only to the fold of law for recovery of the draw-back if any wrongly claimed and taken by him only.
5.3 It was further submitted by ld. Advocate that draw-back was paid to M/s.H.M.Impex but not to this appellant. Therefore, no recovery can be made from him nor any penalty imposable on him. Para 111 of the adjudication order speaks against the appellant without any basis and that is contrary to law, since the appellant was not concerned with H.M. Impex.
5.4. It was also submitted by ld. Counsel Ms. Sinha that the appellant was the landlord of the house where Shri Subodh Kumar Pandey was living as his tenant. Appellant assisted Shri Pandy legally, since he was illiterate and seeking legal assistance of the appellant who is an Advocate. Further, the relied upon documents were not supplied to the appellant and cross-examination was also not allowed for his defence. When cross examination is denied, the appellant is entitled to the ratio laid down in the case of Basudev Garg vs. CC reported in 2013 (294) E.L.T. 353 (Del.) and also the judgement of Honble High Court of Allahabad in the ca se of CCE, Meerut-I vs. Parmarth Iron Pvt. Ltd. Reported in 2010 (26) E.L.T. 514 (All.).
5.5 It was further argued by ld. Counsel that to levy penalty under section 114, appellants contumacious conduct is to be established. Antecedent of the appellant does not speak his conscious involvement in attempt to export nor he made undue gain. When there was no such gain made by him, he cannot be asked to pay penalty of Rs.15.00 Lakhs unjustly.
5.6 It was also submission of ld. Counsel that adjudication was based on interim reply without giving any chance to file final reply to the show cause notice. Reading para 108 of the adjudication order, she submits that Poonam Chand Gupta had challenged the show cause notice on various counts as has been recorded in the adjudication order. But ld. Adjudicating authority did not address the challenge threadbare. He came to a summary conclusion and levied penalty on the appellant.
5.7 Ld. Advocate relied on the decision of Apex Court in Vinod Solanki vs. UOI reported in 2009 (233) ELT 157 (SC) to submit that the appellant has never confessed and in case of confession the burden of proof lies on the Revenue to prove that such a confession was fairly made without any undue influence, coercion or pressure of any kind. In absence of any evidence to show that there was a confession, Revenue fails to establish charge against this appellant. There was no voluntary statement given by him. The statement recorded from the appellant was under pressure. The appellant being innocent, he has right to claim defence against the allegation and he cannot be alleged to be an evader or committer of any omission or commission under law without his active role and deliberate intension to do so. He was brought to record without his involvement in the claim of higher draw back by others.
6.1 On the other hand, Revenues submission is that the officer Suraj Prakash tampered the entries in the computer and mischievously handled the same to mark the shipping bills in his name to give a clean chit to the exporter M/s. H.M. Impex. There were strong evidence against this appellant in para 115 of the adjudication order. He was very well in service at the customs station on 18.06.2003 and had a pre-determined mind to grant undue favour to the exporter. He had made confessional statement about attending to the shipping bill of the exporter proving his involvement. His telephone call details proved how he was connected with Shri Pawan Kumar, Exporter and Shri Surinder Malik. Shri Pawan Kumar and Surinder Malik were in regular contact with the appellant Shri Suraj Prakash directly.
6.2 Revenue also submitted that the shipping bills of H.M. Impex were dealt by Shri Suraj Prakash, and he forged signature of Shri Roshan Sharma to impress that he had not examined the shipping bills. He produced wrong inspection report stating that he had inspected the consignment in the presence of CHA. Entire mischief committed by this appellant is depicted by the ld. Authority in page 110 and 111 in para 115 of his order. Therefore he faced penalty for which adjudication order against him does not call for interference.
6.3. So far as the appeal of Poonam Chand Gupta is concerned, it was argued by ld. DR that ld. Adjudicating Authority brought out that M/s.H.M Impex was a fictitious concern and Mr. Poonam Chand Gupta possessed blank letter heads of M/s.H.M. Impex. 10 pages of such letterhead were recovered from the premises situated at B.G. 5/8, Paschim Vihar, New Delhi while search was conducted to that premises on 19.12.2003. Such papers were used to operate bank accounts of M/s.H.M. Impex also and to make application to JDGFT to get IEC Code in the name of fictitious concern viz., M/s.H.M. Impex. This clearly established involvement of Poonam Chand Gupta to open bank account in the name of H.M. Impex which he admitted in his statement recorded during search on 19.12.2003. Shri Gupta claimed that the blank letter heads were kept by Shri Subodh Kumar Pandey.
6.4. Fraudulent claim of draw back was admitted by Shri Lalit Kumar Katoch and name of H.M. Impex surfaced in his statement. That was found to be fictitious concern and the bank account No.4980 opened in Punjab National Bank was an account operated by the smuggling racket. Out of the draw-back amount of Rs.40,39,440/- taken in the name of H.M. Impex from ICD Parparganj, Delhi an amount of Rs.40,31,000/- was transferred from this account and the money was drawn by various mischievous members of the racket causing prejudice to Revenue. This comes out from para 21 of the adjudication order. Poonam Chand Gupta was a party even to the bank withdrawals which comes out from the said para.
6.5. When Revenue was deceived by the above appellants and also the other appellants in this bunch of appeals who were actively involved in commitment of fraud against Revenue all the appeals are liable to dismissed and penalties confirmed without interference to the adjudication order.
7.1 Heard both sides and perused the record.
7.2 None present for the appellants Surinder Malik, Vijay Kumar Gupta, Subodh Kumar Pandey, Lalit Kumar Katoch and Narinder Singh who faced penalties of different amounts stated in the table at the outset and no defence was led on their behalf. However, in their absence, the records were thoroughly examined and assistance of Revenue was taken.
7.3 Ld. Adjudicating authority has recorded that none of the parties in the show cause notice challenged mis-declaration of the description, quantity, weight and value of the goods attempted to be exported by H.M. Impex. That concern with the IEC Code No.0501039511 with the address NZ-156 Madipur, New Delhi was nonexistent. But two shipping bills bearing No.1288039 dated 17.06.2003 and 1287830 dated 17.06.2003 were filed by such non-existent concern at ICD, Tuglakabad through the CHA M/s. Kunal Travels under duty drawback scheme.
7.4 On the above said background of the case, following issues were before learned adjudicating authority:-
(a) Whether the claim of duty drawback in the shipping bill Nos. 1288039 dated 17.06.2003 and 1287830 dated 17.06.2003 is liable to be rejected.
(b) Whether the duty drawback amount of Rs.40,39,440/- already availed by M/s.H.M. Impex against export of goods vide 12 shipping bills filed at ICD, Patparganj, Delhi is recoverable along with interest from Shri Surinder Mallik, Shri Vijay Gupta, Shri Poonam Chand Gupta and Subodh Kumar Pandey, who were alleged to be operating and controlling the affairs of the fictitious firm, M/s.H.M. Impex.
(c) Whether the goods attempted to be exported by them from Inland Container Depot (ICD), Tughlakabad, New Delhi vide shipping bill Nos.1288039 dated 17.06.2003 and 1287830 dated 17.06.2003 of declared value of Rs.1,62,34,087/- and Rs.74,20,736/- are liable to be confiscated under Section 113 of the Customs Act, 1962 for misdeclaration of description, quantity, weight and value.
(d) Whether penalty is liable to be imposed on the notices under the provisions of Section 114 of the Customs Act, 1962.
7.5 The shipping bill No.1287830 dated 17.06.2003 showed the description of the goods as cotton/Rayon powerloom readymade garment, high fashion ladies dress declaring the value at Rs.1,62,34,087/- FOB with the claim of duty drawback of Rs.17,04,579/-. The P.M.V. of such goods declared was Rs.595/- per piece of high fashion ladies dress and Rs.600/- per piece for the printed ladies dress arriving at aggregate value at Rs.1,70,25,000/-. Those were found to be rags like quality garments, which were of uneven and irregular size, of a very inferring quality, having uneven stitching. Such goods were seized.
7.6 The shipping bill No.1288039 dated 17.06.2003 was in respect of attempted export of Rings (100 MM 80 MM, 60 MM, 40MM) Textile Machinary parts and Gear Cutting Tools made of Cobalt Bearing High Speed Steel involving drawback claim of Rs.16,95,274/-. Both the goods were found to be overvalued and attempted to be exported. So also the gear cutting tools declared as made of cobalt was found to be non-metallic components of four different sizes. These components were not used in machinery as rings.
7.7 CRCL vide report C. No. 35-CUS/2002/CL-139(SH B)and CL-237 to 240(SIIB) issued on 01.02.2004 and subsequent clarification vide their letter dated 05.02.2004, reported that out of the five samples tested by them, three samples were "alloy steel" and the remaining samples were "steel". Each was other than 'High Speed Steel'. Also, none of 'the samples revealed presence of Cobalt. Hence, the goods declared as 'Gear Cutting Tools made of Cobalt Bearing High Speed Steel' were not covered under S. No. 82. 1 of the table of duty drawback rates, 2003-2004 and were not eligible for 'the, duty drawback claimed in the Shipping Bill No. 1288039 dated 17.6.2003.
7.8 Sealed samples were drawn from the consignment of goods declared to be 'Rings (100mm, 80mm, 60mm, 40mm) - Textile Machinery Parts' and were forwarded to M/s Northern India Textile Research Association (NITRA), an institution connected to the Ministry of Textiles, Government of India for test. They had given their findings as the goods declared as "Textile Machinery Parts - Rings " are non-metallic components. of four different sizes. These components were found to be not used in Machinery as rings. In the opinion of that institution, based on the physical observations, the tentative cost of each smallest ring was opined not be more than five paise and each largest ring was opined not be more than ten paise ".
7.9 To ascertain the actual value of the goods under shipping bill No.1287830 dated 17.06.2003, the sealed samples of goods declared as 'Cotton/Rayon/Powerloom Readymade Garments - High Fashion Ladies Dress' and 'Cotton/Rayon/Powerloom Readymade Garments - Printed Ladies Dresses' were drawn and forwarded to the Apparel Export Promotion Council (AEPC), New Delhi. The AEPC vide their report AEPC:REG:EP:EMV:2004 dated 8.6.2004 reported that the "samples were equivalent to rags without commercial value as high as US$ 12 while the fair market value of the samples were considered to be not more than US$ 0.5 per piece".
7.10 Investigating Authority found that:
i) In the shipping bills, invoices and other documents, the declared address of M/s H.M. Impex was given as WZ-156, Madipur, New Delhi. But on visit, no such firm by the name of M/s H.M. Impex was found to exist at that address. The owner of the premises of WZ156, Madipur, New Delhi testified that he had not given his premises to M/s H.M. Impex and did not know any person by the name of Shri Rajiv Kumar (shown as proprietor of M/s H.M. Impex).
ii) When the export goods under the two disputed shipping bills were examined, Sh. Vijay Kumar Gupta had appeared alongwith Sh. Surinder Malik, Shri Poonam Chand Gupta, Shri Subodh Kumar Pandey and Shri Lalit Kumar Katoch, representative of CHA.
iii) That all the documents viz visiting card of Shri Lalit Katoch (representative of CHA) invoice copies, both handwritten and typed, packing lists, blank letter heads of M/s. H.M. Impex, cash deposit counterfoil of PNB of that concern, Certificate of IEC code, PAN card issued by Income Tax Authorities in the name of Shri Rajiv Kumar, (so called proprietor of M/s H.M. Impex), letter from Punjab National Bank to M/s H.M. Impex, form for applying for visitor pass, letter written by Surinder Kumar on letter head of M/s.H.M. Impex, purchase order issued by M/s Indo Magic Sdn Bhd, Malaysia to M/s H.M. Impex, originals of two CRN slips issued by the Container Corporation of India, rough calculation slip showing the costing of 28500 pieces of RMG were recovered from Sh. Vijay Gupta.
iv) Sh. Subodh Kumar Pandey in his voluntary statement recorded under Section 108 of the Customs Act, 1962, stated that he had come to the export shed of ICD, TKD with Shri Vijay Gupta, Sh. Poonam Chand Gupta, Sh. Surinder Malik and Sh. Lalit Katoch for the clearance of export shipments of M/s H.M Impex; that the value of the goods were shown in the export documents as US $ 12.15 per piece whereas their actual value was Rs.20 to Rs. 30 per kg., those being stinking rags; that the said consignments was shown to be valued at Rs. 1,62,34,087 and drawback Rs. 17,04,579/- was shown; that in the second consignment, value of rings had been shown as US $ 14.75 (Rs.688.80) per 100 pieces whereas their actual value was not even 10 paisa per piece; that the second item in that shipping bill was `gear cutting tools - cobalt bearing high speed steel'; that the value of that consignment was declared as Rs.62,92,416.38 and drawback claimed was Rs.16,95,274; that the actual value of that shipment was very low and was Rs.2 lacs or Rs.2.5 lacs; that the fraudulent export had been planned by Sh. Surinder Malik and he (Subodh Kumar Pandey), Shri Vijay Gupta and Sh. Poonam Chand Gupta had provided full help. Sh. Subodh Kumar Pandey admitted in his statement that he had created fictitious firm in the name of M/s Winteck Impex and had signed as 'M. Kumar', proprietor of M/s Winteck Impex.
v) During the period when the export consignment was stopped for examination, Sh. Surinder Malik had repeatedly made telephone calls to Sh. Suraj Prakash. Inspector, who had inspected the consignments.
vi) Sh. Lalit Kumar Katoch (alias Lalit Kumar alias Lalit Katoch), representative of CHA was always in contact with Sh. Vijay Gupta and Sh. P.C. Gupta regarding clearance of the two export consignments and was acting under their direction. He in his statement recorded under Section 108 of the Customs Act, 1962 had stated that by great efforts, he could make Sh. Surinder Malik, Sh. Vijay Gupta, Sh. P.C. Gupta and Sh. Subodh Pandey meet the Deputy Commissioner; that they could not satisfy the Deputy Commissioner in that meeting; that he again arranged meeting of all those exporters with the Deputy Commissioner on 21.06.2003; that Sh. Vijay Gupta spoke to him several times on phone and made enquiries; that on 18.06.2003, Sh. Surinder Malik had also enquired from him on phone about the shipping bills of M/s H.M. Impex; that in connection with his business, he met Shri P.C. Gupta and Shri Vijay Gupta at C-70, Shivaji Park, PunjabiBagh (office address of Shri Poonam Chand Gupta); that whenever he called to their telephone at any of the above two offices, either Shri P.C.Gupta or Shri Vijay Gupta used to be available; that for him both were one and the same and both were owners of the company; that they had asked them that certain goods i.e. 'garments' and 'textile machinery parts' were to be exported to Malaysia; that they assured him that the garments being exported by them were of good quality and their rates were absolutely fair and he should file the papers.
vii) Packing of rags for exports was done at the premises of M/s Indo Exim owned by Sh. Vijay Gupta.
viii) Sh. Jai Prakash, proprietor of M/s Jyoti Enterprises in his voluntary statement recorded under Section 108 of the Customs Act, 1962 had stated that he was a dealer of junk garments; that he sold surplus rejected goods to Sh. Vijay Gupta of the value of Rs.20 to Rs.30 per kg; that he was aware that Shri Vijay Gupta exported such goods at very high prices and earned a lot; that Sh. Vijay Gupta and Sh. Poonam Chand Gupta used to purchase goods from him for export.
ix) Sh. Vipul Kumar Mishra in his statement recorded under Section 108 stated that Sh. Surinder Malik requested him to help in hiring transport.
x) Faxed copies of documents were recovered from the premises of CHA. These were faxed from phone number 91-11-5155615 which belonged to Sh. Poonam Chand Gupta and installed at his office premises.
xi) Blank letter head of M/s H.M. Impex were recovered from the premises of Sh. Subodh Kumar Pandey.
xii) No foreighn exchange for any of the 12 shipping bills of M/s H.M. Impex for export from ICD, Patparganj, Delhi or for any other exports was received in their bank account.
xiii) Sh. Subodh Kumar Pandey had accompanied Sh. Rajiv Kumar, so called proprietor of M/s H.M. Impex, at the time of opening of bank account.
xiv) Sh. V.P. Chawla who had encashed the cheques from the account of M/s H.M. Impex in his statement recorded under Section 108 stated that cheques were given to him by Sh. Poonam Chand Gupta.
xv) Throughout the investigation of the case, Sh. Rajiv Kumar, the so called proprietor of M/s H.M. Impex had never appeared to defend the case of M/s. H.M. Impex and the noticees had operated all activities of the exporter M/s H.M. Impex.
8.1 It is proved from record that M/s.H.M.Impex was nonexistent and there was an organised bid made by all the appellants in this batch of appeal to create that concern to make export of overvalued, inferior, discarded and valueless goods to make fraudulent claim of drawback. Extensive enquiry and investigation discovered commitment of fraud by the appellants as depicted in para 7.10 of the adjudication order and that is based on evidence.
8.2 Attempt to export inferior goods overvaluing the same was successfully proved from the C.R.C.L. as well as report of NITRA as apparent from para 7.7 and 7.8 of the adjudication order. So also the Apparel Export Promotion Council (AEPC) reported that the garments attempted to be exported were inferior quality not commanding the value as declared by the appellant. Similarly, the textile machinery parts were totally inferior and were of very low value.
8.3 Ld. Adjudicating authority also tested result of investigation to find truth thereof as appearing in para 7.10 of his order. That authority found that the incriminating materials gathered by investigation proved story of Revenue discarding entire defence ill founded.
9. The Customs Officer Shri Suraj Prakash was named by Shri Vijay Kumar Gupta in his statement dated 22.07.2003 while he was in judicial custody. He being involved in the Customs fraud, he was before the Court of ACMM. Shri Suraj Prakash allotted both the impugned shipping bills in his name for examination. He manipulated the data in the computer through one Shri Narender Singh. That manipulation was done in the computer terminal of Shri D.V. Sidhmukh since that was open. Mischievous act of Suraj Prakash was corroborated by statement of Narender Singh and Sanjay Kumar Pandey as well as Deeraj Kumar, H card holder of M/s.Kunal Travels, the CHA. As per the work allocation order issued by Assistant Commissioner, Shri Suraj Prakash was posted at the Customs Station on 18.06.2003 under the supervision of Shri Ravinder Mohan. However, the shipping bills of M/s. H.M. Impex were taken by him to Shri D.V. Sidhmukh, Superintendent without the same being presented to Shri Ravinder Mohan. He admitted such crucial fact. His connection with the smuggling racket was also corroborated from the call details register and his involvement in committing fraud against Revenue remained uncontroverted except inviting misplaced sympathy in the course of argument submitting that the appellant was a Customs Officer.
10.1 So far as the case of Shri Poonam Chand Gupta is concerned, his involvement is vividly clear from para 108 of the adjudication order. Although he claimed to be an Advocate, he was involved in purchasing all spurious goods from one M/s. Jyoti Enterprises and that was corroborated by the proprietor thereof. He (Proprietor) admitted to be a dealer of junk garments and Shri Vijay Kumar Gupta as well as Poonam Chand used to purchase such goods from him for export. Recovery of the blank letter heads from premises of Shri Poonam Chand could not be ruled out. He was also brought to record from the evidence of Shri Sanjay Kumar Pandey when he was accompanying him for the clearance of the fraudulent exports attempted to be done by both the shipping bills.
10.2 Involvement of the appellant Shri Poonam Chand Gupta in opening of the Bank account in the name of M/s. H.M. Impex which was a non-existent firm also came to record. He was found to be a master mind behind this to defraud Revenue. Entire investigation pointed at him which was well considered by ld. adjudicating authority in para 108 of his order. Drawing of the draw-back amount from the fake bank account of the said non-existent concern i.e. M/s. H.M. Impex was proved unerringly by investigation supported by cogent evidence. When involvement of this appellant was confirmed by all the appellants, he could not come out from the cluster of allegation made against him by investigation. He was unerringly proved to be manufacturer of fraudulent documents and defrauded Revenue.
10.3 Appellants submission that there was no confession made by Shri Poonam Chand Gupta is of no relevance when the material facts demonstrated his conduct from the recovery of the blank letter pads, his involvement in opening bank accounts, transfer of draw-back money deposited in such bank accounts to different parties and his involvement with the smuggling racket to create non-existence concern. Investigation proved its case with all probabilities of active involvement of Shri Poonam Chand Gupta in the fraud committed against Revenue. In such circumstances, appellants plea for cross-examination is a mere dilatory tactics without justifying reason therefore. Such practice was to further cause prejudice to Revenue.
10.4 Ld. adjudicating authority had allowed adequate opportunity to the appellant through the Show Cause Notice granting opportunity of recourse to natural justice. When the submissions made by the appellant did not receive support of law due to cogent and credible evidence against appellants, ld. adjudicating authority rightly rejected the plea of cross-examination and proceeded to adjudicate against that appellant. Cross-examination although is a valuable right, that cannot be abused without justifiable reason. That is deniable when the court comes to the conclusion that such prayer is to follow dilatory tactics and cause prejudice to the other side. In existence of materials speaking truth against the appellant which remained uncontroverted that debarred him to seek cross-examination. If the evidence gathered and used against the appellant is not impeachable, in absence of cogent evidence to the contrary, plea for cross-examination is liable to be discarded. But that is not the case in the present appeal. Appellant did not discard any of the evidence gathered by the investigation nor veracity thereof questioned. Therefore, there cannot be further plea of no grant of cross-examination.
10.5 The appellant was examined under section 108 of Customs Act, 1962 by customs authority and the evidence gathered during that process is valuable evidence which is admissible in law not being recorded by a police officer. Such evidence being given in the course of judicial proceedings, that is creditworthy and the appellant has no right to go back from that. That may be confessional statement. The statement given by the appellant in the present case corroborated by cogent evidence gathered by investigation inculpated him to the commitment of offence by him under law for which he was rightly penalised. When the appellant faced penalty only, there is no further necessity of dealing with the plea of joint liability raised by the ld. counsel.
10.6 Ld. authority below threadbare examined all the pleas of the appellant and did not bypass his duty nor passed any cryptic order. His order is well reasoned and speaking one. Therefore, that does not call for any interference. The gravity and intensity of the offence committed, itself debarred the appellant to raise plea of violation of natural justice.
10.7 Law is well settled that fraud and justice do not well together and fraud is sworn enemy of justice. When the appellant made every successive effort to de-fraud Revenue, it was bound to suffer consequence of law. The manner how the appellant acted in defiance of law and deceived Revenue, that has vitiated his solemn act. Tainted illegality committed by appellant brought him to the vice thereof and he was penalised. That has come to an end by the right dose of penalty, not calling for interference.
10.8 Shri Vijay Kumar Gupta and Shri Poonam Chand Gupta were so intimately connected with each other, they could not dissociate themselves from the racket attempting to export the offending goods. While M/s. H.M. Impex was proved to be a fake concern and this appellant played a pivotal role to defraud Customs Authority impressing them that M/s.H.M. Impex was an existed concern in the eyes of law, he was perpetrator of fraud. M/s.H.M. Impex having been proved to be fake concern and attempted to export inferior goods overvaluing the same and draw back having been claimed fraudulently as well as depositing the same in bank account were drawn for their enjoyment, commitment of fraud against Revenue was established. All such factors call for dismissal of all the appeals. It is ordered accordingly.
[Pronounced in the open Court on15.10.2014].
(MANMOHAN SINGH) (D.N.PANDA) TECHNICAL MEMBER JUDICIAL MEMBER Anita 1 23 C/481, 492, 491, 493, 551, 617, 483/2007-CU[DB]