Bangalore District Court
Cbi, Acb, Bangalore vs Milap Jain @ Milap Kumar Jain @ Milap ... on 30 July, 2025
IN THE COURT OF THE XVII ADDITIONAL
CHIEF JUDICIAL MAGISTRATE, (SPECIAL COURT FOR
C.B.I. CASES) BANGALORE.
30th day of July, 2025
-: Present :-
Smt. Bhavani, L.J. B.A., LL.M.,
XVII Addl.Chief Judicial Magistrate,
Bengaluru.
C.C.No.33942/2011
COMPLAINANT : Central Bureau of Investigation,
Anti Corruption Branch,
Bengaluru.
[By learned P.P.]
// Versus //
ACCUSED : : Milap Jain @ Milap Kumar
Jain @ Milap Ratan Chand
Jain
S/o Ratan Chand Jain
Major, Proprietor, M/s
Tirupati Exports,
No.27,Industrial Estate,
Chunchanaghatta Road,
Konanakunte, Bengaluru.
Present R/o C/o Ammar
Gawai, No.4, Syed Hussain
Manzil, Ground Floor, Coles
Road, Frazer Town,
Bangalore.
2 C.C.No. 33942/2011
Permanent R/o Rajendra
Villa, Station Road, Bagra,
District Jalore, Rajasthan.
[By Sri. K.S.J. and S.H.M.
Advocates for accused]
01. Date of commission of During 2008 - 2009
Offence
02. Date of Report of the 29.10.2010
offence
03. Date of arrest of Not arrested
accused
04. Date of release of _
accused on bail
05. Total period of _
custody
06. Name of the Source information
Complainant
07. Date of 27.10.2016
commencement of
recording evidence
08. Date of closing of 23.06.2025
evidence
09. Offences complained Section 420, 468 and 471
of of IPC and Section 132,
135 and 135A of
Customs Act, 1962.
10. Opinion of the Judge As per final order
3 C.C.No. 33942/2011
JUDGMENT
The charge sheet submitted by the Dy.S.P., CBI, ACB, Bangalore against the accused for the offences punishable under Section 420, 468, 471 of Indian Penal Code and Section 132, 135 and 135A of the Customs Act, 1962.
2. Brief facts of the prosecution case is as under :
The accused is the proprietor of M/s Tirupati Exports which was having its business premises at No.27 in Sy.No.29/1 and 2, Industrial Estate, Chunchanaghatta Road, Konanakunte Post, Bangalore and office premises at No.837, 7th Main, 12th Cross, Indiranagar, 1st Stage, Bangalore since January 2008. Accused was issued with the certificate of Import Export Code bearing No.0707027985 dated 18.02.2008 in the name of M/s Tirupati Exports by the office of Joint Director General of Foreign Trade, Bangalore. The accused also got registered Tirupati Exports as a dealer under Section 22 of Karnataka VAT Act, 2003 w.e.f.16.01.2008 and also under the provisions of Central Sales Tax Act, 1956 whereby he was permitted to buy certain class of goods availing concessional rate of tax as per the VAT registration certificate issued by the Asst. Commissioner of Commercial Taxes, Local VAT Office-120, Chamarajpete, Bangalore. The accused also got registered M/s Tirupati 4 C.C.No. 33942/2011 Exports with the jurisdictional Division office of Central Excise for manufacturing of excisable goods i.e. articles of plastic (injection moulded - house-hold and industrial articles) using excisable raw materials such as High Density Polyethylene (HDPE)/Low Density Polyethylene (LDPE)/No.ACVPJ9741NXM002 dated 27.02.2008 issued by the Dy. Commissioner of Central Excise, Kanakapura Division, Bangalore. Accused was maintaining current account No.87664 in the name of Tirupati Exports at City Union Bank Limited, Indiranagar branch, Bangalore from 16.01.2008 onwards and Duty Drawback Current account No.17313 at Indian Overseas Bank, Tuticorin Main Branch, Tuticorin, Tamilnadu from 06.03.2008 onwards.
03. During the period 2008 and 2009, accused exported factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme with Tuticorin as port of loading and Jebel Ali in UAE as port of discharge/final destination, which were covered under 14 shipping Bills bearing Nos.2028123 dated 22.12.2008, 2042815 dated 19.01.2009, 2043522 dated 20.01.2009, 2060231 dated 20.02.2009, 2062306 dated 26.02.2009, 2062317 dated 26.02.2009, 2068608 dated 11.03.2009, 2068609 dated 11.03.2009, 2074284 dated 23.03.2009, 2074285 dated 5 C.C.No. 33942/2011 23.03.2009, 2076954 dated 27.03.2009, 2076953 dated 27.03.2009, 2101235 dated 27.05.2009 and 2101554 dated 27.05.2009 by dishonestly and fraudulently misdeclaring the quantity and the resultant misdeclaration of value in the export documents such as export invoices, packing lists, application for removal (ARE-1s) which were signed by him and submitted to the Customs authorities at Tuticorin Port through his CHA M/s Mercantile Shipping Services with a view to cheat the Government of India by availing in-eligible Drawback amount on the ground that he exported the declared quantity in full.
04. After completion of export transactions, eligible drawback amount on the above export were sanctioned and released by the customs house, Tuticorin as per details given below -
Sl. SB No. & date FOB value in DBK Scroll No. & date
No. Rs. amount in
Rs.
1 2028123 99,06,043/- 8,57,832/- 1786/2009
dt.22.12.2008 dt. 06.01.2009
2 2042815 98,47,463/- 8,53,368/- 1809/2009
dt. 19.01.2009 dt. 02.06.2009
3 2043522 dt. 92,52,442/- 7,99,056/- 1798/2009 dt.
20.01.2009 24.03.2009
4 2060231 dt. 1,00,56,610/ 8,49,648,- 1809/2009dt.
20.02.2009 - 02.06.2009
5 2062306 dt. 96,69,681/- 8,44,068/- 1798/2009 dt.
26.02.2009 24.03.2009
6 C.C.No. 33942/2011
6 2062317dt. 98,88,817/- 8,60,436/- 1809/2009 dt.
26.02.2009 02.06.2009
7 2068608 dt. 1,00,89,396/ 8,54,856/- 1800/2009
11.03.2009 - 08.04.2009
8 2068609 dt. 1,0083,735/- 8,58,948/- 1800/2009 dt.
11.03.2009 08.04.2009
9 2074284 dt. 97,85,201/- 8,42,952/- 1800/2009 dt.
23.03.2009 08.04.2009
10 2074285 dt. 98,17,657/- 8,42,952/- 1800/2009 dt.
23.03.2009 08.04.2009
11 2076953 dt. 1,00,16,097/ 8,57,460/- 1800/2009 dt.
27.03.2009 - 08.04.2009
12 2076954 dt. 99,29,755/- 8,56,344/- 1800/2009 dt.
27.03.2009 08.04.2009
13 2101235 dt. 1,01,19,901/ 8,56,344/- 1810/2009 dt.
27.05.2009 - 09.6.2009
14 2101554 dt. 1,01,22,404/ Not sanctioned as per DRI
27.05.2009 - instructions
13,85,85,202 1,10,34,264
/-
05. Drawback amounts so released by the customs House, Tuticorin was credited to the Duty drawback current account No.10200100017313 of M/s Tirupati Exports maintained with Indian Overseas bank, Main Branch at No.21, Victoria Street, Tuticorin with Rs.8,57,832/- on 07.01.2009, Rs.99,056/- and Rs.8,44,068/- on 26.03.2009, Rs.8,54,856/- Rs.8,58,948/-, Rs.8,42,952/-, Rs.8,42,952/-, Rs.8,57,460/- and Rs.8,56,344/- on 09.04.2009, Rs.8,53,368/-, Rs.8,49,648/- and Rs.8,60,436/- on 03.06.2009 and Rs.8,56,344/- on 12.06.2009. After the 7 C.C.No. 33942/2011 credit of fraudulent duty drawback amount as above, accused got the said amounts fraudulently and dishonestly transferred to the current account No.87664 of Tirupati Exports maintained with the City Union Bank Limited, Indiranagar branch, Bangalore by means of Real Time Gross Settlements (RTGS) and National Electronic Fund Transfers (NEFT) and also by taking demand drafts. In this way, Rs.8,57,650/- on 22.01.2009, Rs.16,42,050/- on 28.03.2009, Rs.51,13,100/- on 11.04.2009 and Rs.25,60,100/- on 04.06.2009 were transferred to Current account No.87664 of M/s Tirupati Exports with City Union Bank Ltd., Indiranagar branch, Bangalore by means of Real Time Gross Settlement (RTGS). The duty drawback current account No.17313 at Indian Overseas bank, Main branch, Tuticorin of M/s Tirupati Exports was last operated on 29.09.2009. There is still credit balance of Rs.8,66,655/-. The account has now been blocked since 11.06.2009 as per instructions of Asst. Commissioner of Customs, Tuticorin vide letter dated 11.06.2009.
06. After getting duty drawback amount transferred from IOB, Main Branch, Tuticorin to the Current account of M/s Tirupati Exports maintained with City Union Bank Limited, Indiranagar branch, Bangalore, accused used the fraudulently and dishonestly obtained duty drawback amounts by way of cash withdrawals, transfer to personal 8 C.C.No. 33942/2011 accounts of himself and his wife, transfer payments to Saral Steel and Orloff Jewellery, to make payments towards rent for office and business premises and various other payments. As on 25.09.2010, there was a credit balance of Rs.09.041.53/- only in this account.
07. The accused with dishonest intention, did not submit the export documents of Tirupati Exports to his banker i.e. City Union Bank Limited, Indiranagar Branch, Bangalore at any point of time for realisation of export proceeds from the consignees. However, US$ 24985 equivalent to Indian rupees 12,57,495/- was received in the International Banking Division of City Union Bank at Chennai from Ankita Trading FZE, UAE through its banker Habib Bank, Zurich, Dubai vide DD/TT/MT No.78384422 dated 19.03.2009 being advance remittance for exports and the said amount was credited to the account of Titupati Exports maintained with the City Union Bank Ltd., Indiranagar branch on 23.03.2009. Except the above mentioned advance remittance of Rs.12,57,495/- received from Anikta Trading through IBD, Chennai, no payments towards the exports made by Tirupati Exports to Ankita Trading have been received for credit to the account of Tirupati Exports at City Union Bank Ltd., Indiranagar branch, Bangalore. Against this advance remittance, certificate of Foreign Inward 9 C.C.No. 33942/2011 Remittance bearing Sl.No.5158 dated 09.07.2009 for Rs.12,57,495/- has been issued to Tirupati Exports by the City Union Bank Ltd., IBD, Chennai.
08. The accused had approached the Superintendent of Central Excise, Kanakapura Road Range-I, Bangalore on 10.06.2009, requesting for inspection of factory stuffing of the same export goods to the same party under the same Duty Drawback Scheme with Tuticorin as Port of loading and Jebel Ali in UAE as Port of discharge/final destination and submitted Export invoice Nos.003/2009-10 and 004/2009-10, both dated 03.06.2009, packing lists, applications for removal (ARE-
1) bearing No.3 and 4, both dated 10.06.2009 along with his request letter dated 10.06.2009. Even before the examination of export goods could be undertaken by the officers of Central Excise, Kanakapura Road, Range-I, Bangalore a team of DRI, Bangalore led by Sri. M.R.Chandrashekhar, Sr. Intelligence Officer- Directorate of Revenue Intelligence intercepted, examined and seized the export consignment. The DRI action which commenced on 10.06.2009 around 18.00 hours continued upto 16.00 hours on 11.06.2009.
09. The verification of the export consignments by the DRI officials revealed that the actual number of 10 C.C.No. 33942/2011 packages and quantities were not tallying with the declaration made by M/s Tirupati Exports in ARE-I and invoices raised for the export and thereby, accused made false declaration of boxes and quantities by inflating it in order to get duty drawback from Government of India by fraudulent means. The total value declared for both the consignments was Rs.1,96,65,270/-. The discrepancies noticed were as detailed below -
Sl. ARE-I No. & Invoice Container No. of No.of No.of No.of
No date No. & No. Boxes boxes pieces/ pieces/
. date declared found quantit quantit
y y found
declare
d
1 3/10.6.09 3/3.6.09 CRXU 399 306 27864 3792
2031190
2 4/10.6.09 4/3.6.09 NESU 452 329 27720 7584
3523162
10. After the detection of the fraud committed by accused two more containers bearing Nos.TTNU 346979 (3) and TTNU 387114 (3) of the earlier exports/shipments done by M/s Tirupati Exports covered under shipping bill No.2101554 dated 27.05.2009 and 2101235 dated 27.05.2009 were recalled from Dubai via Tuticorin Port and were brought to the premises of M/s Tirupati Exports at No.27, Industrial Estate Chunchanaghatta Road, Konanakunte Post, Bangalore and the same were examined and seized by the team of DRI, Bangalore led by Sri. M.R. Chandrashekar, Sr. Intelligence Officer, 11 C.C.No. 33942/2011 Directorate of Revenue intelligence on 27.06.2009. The DRI verification of the recalled export consignments revealed that the actual number of packages and quantities were not tallying with the declaration made by M/s Tirupati Exports in the export documents and that they were inflated. The total value declared for both the consignments was Rs.2,02,42,305/- (Rs.1,01,19,901/32 and Rs.1,01,22,403/68). The discrepancies noticed are as detailed below -
Sl. Shipping Invoice Container No. of No.of No.of No.of No. Bill No.& No. & No. Boxes boxes pieces/ pieces/ date date declared found quantity quantity declared found 1 2101554/ 2/09-10 TTNU 488 250 27576 3280 27.05.09 dt. 387114 (3) 23.05.09 2 2101235/ 1/09-10 TTNU 487 239 27624 3138 27.05.09 dt.23.05. 346979 (3) 09
11. As a part of DRI investigation, Sri. Mukarram Eashaq, SIO, DRI recorded the statements of accused under the provisions of Section 108 of the Customs Act, 1962 on 12.06.2009, 03.07.2009 and 21.07.2009 after observing all legal formalities. In his statements, accused has voluntarily, inter-alia explained/admitted under his signature that, ' he himself is the proprietor of Ankita Trading FZE, PO Box No.10559, RAKFTEZ, Rasal Khaima, UAE and since there was nobody to look after the day- today operations at Rasal Khaima, soon after effecting 12 C.C.No. 33942/2011 exports from Bangalore, he would go to Rasal Khaima and attend to the import formalities there and only 2008, he appointed one Deepak Shah to take care of the import formalities at Rasal Khaima and after clearance from the Customs at Rasal Khaimah, the goods would be sold in local market by Sri. Deepak Shah and the sale proceeds were being deposited in his account with the Habib Bank from where the amount would finally be transferred to the City Union Bank, Bangalore through Telegraphic Transfer and since the amount of sale proceeds would be less due to mis-declaration of quantity, he would make good the balance amount through hawala and on the basis of the amount received as above, the City Union Bank, Bangalore would issue FIRC favouring M/s Tirupati Exports and however, he had received only a sum of US$ 24985 equivalent to Indian rupees 12,57,495/- as advance remittance for exports and he is yet to receive export proceeds in respect of other shipments and since nobody insisted for FIRC/BRCs, he kept postponing the remittance of amounts i.e. export proceeds into the account of Tirupati Exports and he had intentionally mis- declared the quantity and value of the export goods in order to avail more drawback amount and he volunteered to deposit the in-eligible drawback amount of Rs.12 lakhs, which he did in two installments by depositing Rs.7 lakhs 13 C.C.No. 33942/2011 on 26.06.2009 and Rs.5 lakhs on 15.07.2009 in Government account at Tuticorin '.
12. Show Cause Notice was issued to accused demanding him to show cause as to why recovery of drawback amount should not be made from him vide DRI F.No.S/IV/09/09-Tuticorin dated 03.11.2009 by the Addl. Director General, DRI, Bangalore Zonal Unit, Bangalore. Thereafter, the Commissioner of Customs, Customs House, Tuticorin has also issued order in original bearing No.33/2010 (commr) dated 16.11.2010 confirming the demand of in-eligible drawback amount in addition to levying of penalty of Rs.60 lakhs.
13. In none of the above cases of exports, accused submitted bank realization certificates to the Customs House, Tuticorin even after the lapse of one year period from the date of Let Export Order. Hence notice bearing No.C.No.VIII/20/1015/2010 dated 21.06.2010 has been issued to him by the Dy. Commissioner (Drawback), Customs House, Tuticorin directing to show cause as to why the entire duty drawback amount of Rs.1,28,83,248/- sanctioned and released to him should not be recovered from him under Section 75 of the Customs Act r/w Rule 16 A of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 penalty should not be imposed 14 C.C.No. 33942/2011 on him u/Sec.117 of the Customs Act, 1962 and interest should not be charged in terms Section 75 A (2) r/w Section 28 AB of the Customs Act, 1962. the show cause notice was sent by registered post acknowledgment due and so far the accused has not replied to the same. Hence accused has committed the offences of cheating, forging the documents for the purpose of cheating, using the forged documents as genuine, made false declaration to Customs and claimed false duty drawback from customs and thereby he cause a total loss of Rs.1,10,34,264/-, out of which after detection of the fraud by the DRI, he voluntarily confessed and repaid a sum of Rs.12 lakhs in two installments to Government account at Tuticorian and the remaining balance amount of Rs.98,34,264/- is fraudulently derived by him by cheating the Government of India. The balance amount is exclusive of the admissible fine and interest for availing in eligible duty drawback amount on fraudulent exports as per above said acts. The investigation did not reveal any criminality on the part of the accused, public servants. However, for their various acts of omissions and commissions, RDA for major penalty has been recommended against them.
14. Sri. C. Rajendran, Commissioner of Customs, Custom House Tuticorin and the authority competent to accord sanction by virtue of the provisions of Section 137 15 C.C.No. 33942/2011 (1) of Customs Act, 1962, has accorded sanction under Section 137 (2) (b) of the Customs Act, 1962 for the prosecution of accused who is proprietor of M/s Tirupati Exports Bangalore for the offences u/Sec.132, 135, 135 A of the Customs Act, 1962 and for taking cognizance of the said offences against accused by a Court of competent jurisdiction. Hence, the accused has committed the offence punishable under Section 420, 468, 471 of Indian Penal Code and Section 132, 135 and 135A of the Customs Act, 1962.
15. After receipt of charge sheet, this court took the cognizance of the offences alleged against the accused and the accused person secured by issuing summons and he was enlarged on bail. The charge sheet copies were furnished to accused as required u/Sec.207 of Cr.P.C.
16. Heard both sides on framing of charge. This Court has passed the order on hearing before charge on 16.09.2013, wherein the contention of the accused that this Court is not having jurisdiction to take the cognizance for the offence punishable u/Sec.132 and 135 of the Customs Act was rejected. Against the said order, the accused preferred the Crl.R.P.No.333/2013 before the Hon'ble XXXII ACC&SJ and Spl. Judge for CBI Cases, Bangalore and the said Revision Petition was dismissed 16 C.C.No. 33942/2011 on 20.08.2016. Against the said order, the accused preferred the Crl.P.No.7603/2016 before the Hon'ble High Court of Karnataka, Bangalore and the said criminal petition was dismissed on 25.01.2022. Further, this Court has passed the order dated 15.09.2016 that the Sections 468 and 471 of IPC does not attract, hence, charge cannot be framed for the offence punishable u/Sec.468 and 471 of IPC and there is a case of attempt to commit cheating by the accused, hence charge can be framed u/sec.511 r/w 420 of IPC. Since there were prima-facie materials available on record, charge was framed for the offence punishable under Section 420 and 511 r/w 420 of IPC and Sec.132, 135 and 135 A of Customs Act and it was read over to the accused and he has pleaded not guilty and claimed to be tried.
17. In order to prove the case, prosecution has examined PW. 1 to 40 and got marked the documents Ex.P.1 to 54 and closed its side evidence.
18. The incriminating evidence prevailing against the accused, the statement U/sec.313 of the Cr.P.C. was recorded and read over to the accused. The accused denied the same and he has not chosen to adduce any evidence on his behalf. Accused has filed written statement u/Sec.313 (5) of Cr.P.C.
17 C.C.No. 33942/201119. I have heard the arguments of the Ld. Public Prosecutor and Ld. Counsel for accused. I have perused the materials available on record.
20. On the materials available on record and also on the arguments advanced by both the parties, the points that arose for my consideration are as under;
1) Whether the prosecution proves beyond reasonable doubt that, the accused being the proprietor of M/s Tirupati Exports with a dishonest and fraudulent intention to cheat the Government of India, during the period 2008 and 2009 mis-declared the number of packages and number of pieces and its value in the export documents under Duty Drawback Scheme covered under shipping bills and fraudulently availed the Duty Drawback amount and caused wrongful loss to Government of India and thereby committed the offence punishable u/Sec.420 of IPC ?
2) Whether the prosecution proves beyond reasonable doubt that, the accused being the proprietor of M/s Tirupati Exports with a dishonest and fraudulent intention to cheat the Government of India during the period 2008 and 2009, mis-declared the number of packages and number of pieces and its value in the export documents under Duty Drawback Scheme and fraudulently attempted to avail the Duty Drawback amount from the Government of India and thereby 18 C.C.No. 33942/2011 committed the offence punishable u/Sec.511 r/w Sec.420 of IPC?
3) Whether the prosecution proves beyond reasonable doubt that, the accused being the proprietor of M/s Tirupati Exports, during the period 2008 and 2009, knowingly made false declaration in respect to the number of packages and number of pieces and its value in the export documents relating to the customs under Duty Drawback Scheme covered under shipping bills and thereby committed the offence punishable u/Sec.132 of the Customs Act, 1962 ?
4) Whether the prosecution proves beyond reasonable doubt that, the accused being the proprietor of M/s Tirupati Exports, during the period 2008 and 2009, fraudulently availed the Duty Drawback amount under Duty Drawback Scheme covered under shipping bills and thereby committed the offence punishable u/Sec.135 of the Customs Act, 1962 ?
5) Whether the prosecution proves beyond reasonable doubt that on 10.06.2009 the accused being the proprietor of M/s Tirupati Exports intentionally made preparation to export the goods under 2 invoices bearing No.003/2009-10 and No.004/2009-10 both dated 03-06-2009 in contravention of the provisions of the Customs Act, 1962 and thereby committed the offence punishable u/Sec.135 A of the Customs Act, 1962 ?
19 C.C.No. 33942/20116) What order or sentence?
21. My findings to the above points are as under;
POINT NO.1 : In the Affirmative
POINT NO.2 : In the Affirmative
POINT NO.3 : In the Affirmative
POINT NO.4 : In the Affirmative
POINT NO.5 : In the Affirmative
POINT NO.6 : As per the final order
for the following;
REASONS
22. POINT NO.1 to 4: These points have been taken up together for common discussion as they are interconnected with each other so as to avoid repetition of facts.
23. The prosecution has prosecuted the accused for the offences punishable u/Sec.420, 511 r/w 420 of IPC and Sec.132, 135 and 135 A of the Customs Act, 1962. The major allegations against the accused is that the accused being the proprietor of M/s Tirupati Exports with a dishonest and fraudulent intention to cheat the Government of India mis-declared the quantity and value of the goods in export documents under duty drawback scheme covered under 14 shipping bills and fraudulently 20 C.C.No. 33942/2011 availed duty drawback amount of Rs.1,10,34,264/-. Admittedly, the burden of proving the guilt of the accused for the alleged offences beyond reasonable doubt is on the prosecution. It is the cardinal principle of criminal law that every person is presumed to be innocent until the contrary is proved. Hence, the entire burden is on the prosecution to prove the guilt of the accused for the alleged offences beyond all reasonable doubt.
24. Sec. 420 of IPC speaks that -
whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of the valuable security, or any thing which is signed or sealed and which is capable of being converted into a valuable security shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to be fine.
25. From the above provision, it is clear that, in order to constitute the offence punishable under section 420 of the IPC, the following ingredients has to be proved;
i) there must be a deception i.e. the accused must have deceived someone.
ii) that by the said deception, the accused must induce a person to deliver any property or to make, alter or destroy whole or part of the valuable security or anything which is signed 21 C.C.No. 33942/2011 or sealed and which is capable of being converted into the valuable property.
iii) that the accused did so dishonestly.
26. Sec.415 of the IPC provides definition of cheating which reads as under;
Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall intentionally retain any property, or induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation : A dishonest concealment of fact is a deception with the meaning of this section.
27. On reading of the above provision, it is clear that, the necessary ingredients of cheating are ;
(i) deception of any person ;
(ii)(a) fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property ;
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
22 C.C.No. 33942/201128. Section 415 read with Section 420 IPC indicates that fraudulent or dishonest inducement on the part of the accused must be at the inception and not at a subsequent stage.
29. Section 511 of IPC speaks that -
whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
30. As per the prosecution case, the accused is proprietor of M/s Tirupati Exports which was having its business premises at No.27 in Sy.No.29/1 and 2, Industrial Estate, Chunchanaghatta Road, Konanakunte Post, Bangalore.
31. Ex.P.1 is the original account opening form of City Union Bank Ltd., Indiranagar branch, Bangalore along with copy of the rental agreement and KYC 23 C.C.No. 33942/2011 documents, copy of VAT registration certificate pertaining to M/s Tirupati Exports. These documents shows that the account opened in the name of M/s Tirupati Exports, bearing No.27 in Sy.No.29/1 and 2, Industrial Estate, Chunchanaghatta Road, Konanakunte Post, Bangalore by the accused who is proprietor of M/s Tirupati Exports. Further, the copy of VAT registration certificate also reveals that the accused got registered Tirupati Exports as a dealer under Section 22 of Karnataka VAT Act, 2003 bearing No.TIN No.29130787823 w.e.f. 16.01.2008. Further copy of rental agreement reveals that the accused has obtained industrial shed situated at property No.27, Industrial Estate, Yelechenahalli, Chunchanaghatta Main Road, Konanakunte Post, Bangalore South measuring 1800 sq. ft. with RCC roofed building under lease from one Sri. Shazade Khuram Nazir on 14.01.2008.
32. P.W.1 is Sri. Shazade Khurram Nazir who is owner of the Industrial Shed bearing No.27 in Sy.No.29/1 and 2, Industrial Estate, Yelechenahalli, Chunchanaghatta Road, Konanakunte Post, Bangalore and he deposed before the Court that the accused was his tenant and he was having industrial shed at Yelechenalli, Chunchanaghatta Main Road in Bangalore South Taluk and the accused had approached him for having the industrial shed on the rental basis to use the same as 24 C.C.No. 33942/2011 godown for storing his garments materials and he and accused entered into rental agreement and accused had a proprietorship concerned by name M/s Tirupati Exports and rent was fixed for Rs.14,500/- p.m. and the accused paid the rent till February 2009. P.W.1 was subjected to cross examination by the Ld. Counsel for the accused, wherein nothing has been disputed that accused was tenant under the P.W.1. Hence, on perusal of Ex.P.1 documents as well as the evidence of P.W.1, it clear that prosecution has proved that the accused is the proprietor of M/s Tirupati Exports, situated at No.27 in Sy.No.29/1 and 2, Industrial Estate, Yelechenahalli, Chunchanaghatta Road, Konanakunte Post, Bangalore.
33. Further as per the prosecution case, accused was issued with certificate of Import Export Code bearing No.0707027985 dated 18.02.2008 in the name of M/s Tirupati Exports by the office of Joint Director General of Foreign Trade, Bangalore.
34. Ex.P.4 is the letter issued by the Foreign Trade Development Officer to the CBI wherein it is stated that she forwarding the original file relating to allotment of IEC bearing No.0707027985 in the name of M/s Tirupati Exports.
25 C.C.No. 33942/201135. Ex.P.5 is the original file relating to the allotment of IEC bearing No.0707027985 in the name of M/s Tirupati Exports. It reveals that the certificate of Import and Export Code (IEC) issued by Foreign Trade Development Officer on 18.02.2008 and the IEC No.0707027985 was allotted to M/s Tirupati Exports.
36. C.W.3 - Smt. Shakuntala Naik the then Foreign Trade Officer examined as P.W.3 and she deposed that the IEC Code No.0707027985 was given to M/s Tirupati Exports represented by accused and she identified the Ex.P.4 and 5 documents. Hence, the prosecution has established that IEC No.0707027985 allotted to M/s Tirupati Exports.
37. Further as per case of the prosecution, the accused also got registered M/s Tirupati Exports with the jurisdictional division office of Central Excise. In this regard, Ex.P.6 file has been produced, wherein the Central Excise Registration Certificate issued in the name of M/s Tirupati Exports a proprietorship firm under the registration No.ACVPJ9741NXM002 dated 27.02.2008.
38. C.W.4 - Sri. M.D. Doraiswamy the then Deputy Commissioner of Central Excise, Kengeri Division, Bangalore examined as P.W.4 and he deposed that accused who is the proprietor of M/s Tirupati Exports had 26 C.C.No. 33942/2011 applied Central Excise Registration Certificate on 27.02.2008 and they have issued the Central Excise Registration Certificate as per Ex.P.6. Hence the prosecution has proved that M/s Tirupati Exports was registered with the jurisdictional office of Central Excise.
39. Further, as per the case of the prosecution, the accused was maintaining current account No.87664 in the name of M/s Tirupati Exports at City Union Bank Ltd., Indiranagar branch, Bangalore from 16.01.2008 onwards. In this regard, Ex.P.1 is original account opening form is produced which reveals that the accused was maintaining the current account No.87664 in the name of M/s Tirupati Exports from 16.01.2008 at City Union Bank Ltd., Indiranagar branch, Bangalore.
40. C.W.2 - Sri. V. Gopalakrishnan, the then branch manager, City Union bank, Indiranagar branch, Bangalore examined as P.W.2 and he deposed before the Court that the current account No.87664 is pertaining to M/s Tirupati Exports. Hence, the prosecution has proved that M/s Tirupati Exports was maintaining the current account No.87664 at City Union Bank Ltd., Indiranagar branch, Bangalore from 16.01.2008.
41. As per the prosecution case, the accused was maintaining Duty Drawback current account No.17313 at 27 C.C.No. 33942/2011 Indian Overseas Bank, Tutucorin main branch, Tamilnadu on 06.03.2008 on wards.
42. C.W.32 - Sri. R. Mathi Selvan the then Chief Manager, Indian Overseas Bank, Tuticorin Branch, Tamilnadu examined as P.W.33 and he deposed that he has produced the documents to investigating officer as per Ex.P.43. Further he states that as per Ex.P.43 account opening form, accused is the proprietor of M/s Tirupati Exports and the type of this account is Duty Drawback account and in this account they allow only duty draw bank amount from the customs and the duty drawback amount will be received from the Customs department to the account of customer.
43. Ex.P.43 is the letter in respect to forwarding of account opening form along with other enclosures and certified copies of statements of accounts etc. As per original account opening form marked under Ex.P.43, the accused who is proprietor of M/s Tirupati Exports having duty drawback current account No.17313 in the name of M/s Tirupati Exports at Indian Overseas Bank, Thoothukudi main Road, Tamilnadu. Hence, the prosecution has established that the accused was maintained the duty drawback current account No.17313 at Indian Overseas bank, Tuticorin branch, Tamilnadu.
28 C.C.No. 33942/201144. Further, as per the prosecution case, during the period 2008 and 2009, accused exported factory stuffed bought out non-duty paid 100% cotton knitted men's T- Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme with Tuticorin as port of loading and Jebel Ali in UAE as port of discharge/final destination, which were covered under 14 shipping Bills bearing Nos.2028123 dated 22.12.2008, 2042815 dated 19.01.2009, 2043522 dated 20.01.2009, 2060231 dated 20.02.2009, 2062306 dated 26.02.2009, 2062317 dated 26.02.2009, 2068608 dated 11.03.2009, 2068609 dated 11.03.2009, 2074284 dated 23.03.2009, 2074285 dated 23.03.2009, 2076954 dated 27.03.2009, 2076953 dated 27.03.2009, 2101235 dated 27.05.2009 and 2101554 dated 27.05.2009 by dishonestly and fraudulently mis-declaring the quantity and the resultant mis-declaration of value in the export documents such as export invoices, packing lists, application for removal (ARE-1s) which were signed by him and submitted to the Customs Authorities at Tuticorin Port through his CHA M/s Mercantile Shipping Services with a view to cheat the Government of India by availing in-eligible Drawback amount on the ground that he exported the declared quantity in full.
29 C.C.No. 33942/201145. The prosecution has to prove that the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme with Tuticorin as port of loading and Jebel Ali in UAE as port of discharge/final destination, which were covered under 14 shipping bills.
46. As per Sec.2 (a) of the Customs and Central Excise Duties Drawback Rules, 1995, defines "drawback" as, in relation to any goods manufactured in India, and exported, means the rebate of duty chargeable on any imported materials or excisable materials used in the manufacture of such good.
47. The prosecution has examined the witnesses and produced the documents in respect to 14 shipping bills. It is necessary to discuss about the relevant oral and documentary evidence produced before the Court in respect to each shipping bills separately.
Sl.No.1 - Shipping Bill No.2028123 dated 22.12.2008
48. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under 30 C.C.No. 33942/2011 Duty Drawback Scheme under Shipping Bill No.2028123 dated 22.12.2008.
49. Ex.P.17 is the Examination Report along with shipping bill for export, Annexure C particulars, Check list, export invoice, packing list, Form SDF in respect to shipping bill No.2028123 dated 22.12.2008. These documents shows that the accused has exported the goods under shipping bill No.2028123 after examination by the Inspector and Superintendent of Customs. In Ex.P.17 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.17 it is specifically mentioned that duty drawback amount of Rs.8,57,832/- was claimed under the said shipping bill. Further, in export invoice and also in packing lists, the quantity of 100 % cotton knitted men's T.shirts with quantity, rate and amount is mentioned. Hence Ex.P.17 shows that the accused has claimed duty drawback amount of Rs.8,57,832/- under shipping bill No.2028123 dated 22.12.2008.
50. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise office, export invoices, packing lists, Form ARE-1 etc., in 31 C.C.No. 33942/2011 respect to M/s Tirupati Exports, wherein sheet No.22 to 26 pertaining to ARE-1 No.3. The documents pertaining to ARE-1 No.3 reveals that the accused has filed the application on 24.12.2008 for inspection and necessary attestation in respect to shipment of goods under Invoice No.007/2008-09 dated 22.12.2008 and examination report issued by the Inspector and Superintendent of Central Excise that total number of packages are 454 cartons and also issued certificate that they have opened and examined the packages of 10% goods and found that the particulars stated in the description given overleaf and the packaging list is correct. Further export invoice and packing list reveals the quantity, rate, amount and number of cartons. These documents shows that 10 % of the goods under shipping bill No.2028123 was examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report and thereafter the said goods were exported to UAE from Tuticorin Port.
51. C.W.13 - Sri. T. Muthukumar, the then Superintendent of Customs House, Tuticorin examined as P.W.10 and he deposed that Ex.P.17 shipping bill and relevant enclosures in respect to M/s Tirupati Exports bearing shipping bill No.2028123 dated 22.12.2008 wherein the the exporter exported 100% cotton knitted 32 C.C.No. 33942/2011 men's T Shirts and the container No.CAXU6568389 came to the export examination and the custom house agent (CHA) produced a sealed cover containing the central Excise Examination Report along with the supporting documents and he verified the report and sample seal and admitted the documents for making entry in the EDI system and Inspector R. Manimaran entered the details in EDI system and he himself and Inspector R. Manimaran inspected the container and verified the correctness of the container number as well as the intact condition of the Central Excise seal and since the container number was found correct and seal was also found intact and he has given Let Export order. He further states the consignment was not opened for physical examination by them. In his cross-examination, he admitted that whenever the exporters wanted to export materials there will be physical examination by the inspector of Central Excise at factory premises and the inspector and superintendent will examine the goods and empty container and thereafter thee goods will be stuffed in the container. Further he admitted that nobody will tamper the goods in the container and the Ex.P.17 is a genuine documents.
52. C.W.26 - Sri. R. Manimaran the then Inspector of Customs at Tuticorin, Tamilnadu examined as P.W.21 33 C.C.No. 33942/2011 and he identified his signature at Ex.P.17. In his cross- examination, he admitted that the consignment before loading into the container, each and every aspect of the consignment have been verified physically and after due satisfaction by the Central Excise officer and Central Excise Superintendent they will permitted to load the consignment into the container and after putting the consignment into the container, both Central Excise officer and Central Excise Superintendent put lead seal and once they put lead seal, it deemed that there was examination of documents vis-a vis consignment loaded in the container. Further, he admits that he has no duty to verify the consignment after seeing the seal intact of the container.
53. Further, C.W.19 - Sri. K. Mariappan the then Superintendent of Central Excise and Customs examined as P.W.17 and he deposed that he was working as Superintendent at Green Gate and his duty is to verifying the vehicle entering in the green gate and verifying the documents and also container number and the container seal number is intact or not. Further, he identified his signature in Ex.P.17. In his cross-examination, he clearly admitted that he has no personal knowledge with regard to how many boxes in the container and he has not stated 34 C.C.No. 33942/2011 in his statement before the I.O. about the number of boxes.
54. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also admitted in his cross-examination that the 14 consignments are all past consignments.
55. As per the evidence of P.W.10, 17 and 21, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal. As per Ex.P.7 examination report and certificate issued by the Central Excise Superintendent and Inspector, 10% goods were examined by them. Further, P.W.36 admits that no incriminating documents placed before him in respect to 12 past consignments except non receipt of export 35 C.C.No. 33942/2011 proceeds in foreign exchange and the admission statement of the accused.
56. It is pertinent to note that the said consignment under shipping bill No.2028123 was exported in the month of December 2008 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers. Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2028123. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of packages or number of pieces and its value in the export document in respect to shipping bill No.2028123 dated 22.12.2008. Hence, the prosecution has failed to establish that the accused has mis-declared the number of 36 C.C.No. 33942/2011 packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2028123 dated 22.12.2008.
Sl.No.2 - Shipping Bill No.2042815 dated 19.01.2009
57. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme under Shipping Bill No.2042815 dated 19.01.2009.
58. Ex.P.21 is the copy of the shipping bill No.2042815 dated 19.01.2009. These documents shows that the accused has exported the goods under shipping bill No.2042815. In Ex.P.21 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.21 it is specifically mentioned that duty drawback amount of Rs.8,53,368/- was claimed under the said shipping bill. Hence Ex.P.21 shows that the accused has claimed duty drawback amount of Rs.8,53,368/- under shipping bill No.2042815 dated 19.01.2009.
59. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise 37 C.C.No. 33942/2011 office, export invoices, packing lists, Form ARE-1 etc., in respect to M/s Tirupati Exports, wherein sheet No.32 to 37 pertaining to ARE-1 No.5. The documents pertaining to ARE-1 No.5 reveals that the accused has filed the application on 20.01.2009 for inspection and necessary attestation in respect to shipment of goods under Invoice No.008/2008-09 dated 01.01.2009 and examination report issued by the Inspector and Superintendent of Central Excise that total number of packages are 446 cartons and also issued certificate that they have opened and examined the packages of 10% goods and found that the particulars stated in the description given overleaf and the packaging list is correct. Further export invoice and packing list reveals the quantity, rate, amount and number of cartons. These documents shows that 10 % of the goods under shipping bill No.2042815 was examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report and thereafter the said goods were exported to UAE from Tuticorin Port.
60. C.W.18 - Sri. Rajasekharan, the then Superintendent of Customs House, Tuticorin examined as P.W.15 and he deposed that Ex.P.21 shipping bill No.2042815 dated 19.01.2009 and according to the said document duty drawback scheme was invoked by the 38 C.C.No. 33942/2011 exporter. He further states they will never physically verify the export goods in the container. In his cross- examination, he admitted that the Superintendent and Inspector of Central Excise had examined the export goods and after due satisfaction, they have issued examination report.
61. C.W.28 - Sri. M. Kannan the then Superintendent of Customs at Tuticorin, Tamilnadu examined as P.W.23. In his examination in chief, he states that he has no authority to open the container sealed by the Central Excise Officers and if any suspicion arise, then he has to report his higher authority and get the permission for open the seal of the container and examination of goods. In his cross-examination he admitted that the consignment before loading into the container, each and every aspect of the consignment have been verified physically and after due satisfaction by the Central Excise officer and Central Excise Superintendent they will permitted to load the consignment into the container and after putting the consignment into the container, both Central Excise officer and Central Excise Superintendent put lead seal and once they put lead seal, it deemed that there was examination of documents vis-a vis consignment loaded in the container. Further, he 39 C.C.No. 33942/2011 admits that he has no duty to verify the consignment after seeing the seal intact of the container.
62. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also admitted in his cross-examination that the 14 consignments are all past consignments.
63. As per the evidence of P.W.15 and 23, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal. As per Ex.P.7 examination report and certificate issued by the Central Excise Superintendent and Inspector, 10% goods were examined by them. Further, P.W.36 admits that no incriminating documents placed before him in respect to 12 past consignments except non receipt of export 40 C.C.No. 33942/2011 proceeds in foreign exchange and the admission statement of the accused.
64. It is pertinent to note that the said consignment under shipping bill No.2042815 was exported in the month of January 2009 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers. Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2042815. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of packages or number of pieces and its value in the export document in respect to shipping bill No.2042815 dated 19.01.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of 41 C.C.No. 33942/2011 packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2042815 dated 19.01.2009.
Sl.No.3 - Shipping Bill No.2043522 dated 20.01.2009
65. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme under Shipping Bill No.2043522 dated 20.01.2009.
66. Ex.P.21 is the copy of the shipping bill No.2043522 dated 20.01.2009. These documents shows that the accused has exported the goods under shipping bill No.2043522. In Ex.P.21 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.21 it is specifically mentioned that duty drawback amount of Rs.7,99,056/- was claimed under the said shipping bill. Hence Ex.P.21 shows that the accused has claimed duty drawback amount of Rs.7,99,056/- under shipping bill No.2043522 dated 20.01.2009.
67. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise 42 C.C.No. 33942/2011 office, export invoices, packing lists, Form ARE-1 etc., in respect to M/s Tirupati Exports, wherein sheet No.38 to 42 pertaining to ARE-1 No.6. The documents pertaining to ARE-1 No.6 reveals that the accused has filed the application on 28.01.2009 for inspection and necessary attestation in respect to shipment of goods under Invoice No.011/2008-09 dated 19.01.2009 and examination report issued by the Inspector and Superintendent of Central Excise that total number of packages are 423 cartons and also issued certificate that they have opened and examined the packages of 10% goods and found that the particulars stated in the description given overleaf and the packaging list is correct. Further export invoice and packing list reveals the quantity, rate, amount and number of cartons. These documents shows that 10 % of the goods under shipping bill No.2043522 was examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report and thereafter the said goods were exported to UAE from Tuticorin Port.
68. C.W.18 - Sri. Rajasekharan, the then Superintendent of Customs House, Tuticorin examined as P.W.15 and he deposed that Ex.P.21 shipping bill No.2043522 dated 20.01.2009 and according to the said document duty drawback scheme was invoked by the 43 C.C.No. 33942/2011 exporter. He further states they will never physically verify the export goods in the container. In his cross- examination, he admitted that the Superintendent and Inspector of Central Excise had examined the export goods and after due satisfaction, they have issued examination report.
69. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also admitted in his cross-examination that the 14 consignments are all past consignments.
70. As per the evidence of P.W.15, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal. As per Ex.P.7 examination report and certificate issued by the Central Excise Superintendent and Inspector, 10% goods were 44 C.C.No. 33942/2011 examined by them. Further, P.W.36 admits that no incriminating documents placed before him in respect to 12 past consignments except non receipt of export proceeds in foreign exchange and the admission statement of the accused.
71. It is pertinent to note that the said consignment under shipping bill No.2043522 was exported in the month of January 2009 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers. Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2043522. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of packages or number of pieces and its value in the export 45 C.C.No. 33942/2011 document in respect to shipping bill No.2043522 dated 20.01.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2043522 dated 20.01.2009.
Sl.No.4 - Shipping Bill No.2060231 dated 20.02.2009
72. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme under Shipping Bill No.2060231 dated 20.02.2009.
73. Ex.P.20 is the Examination Report along with shipping bill for export, Annexure C particulars, Check list, export invoice, packing list, Form SDF and Annexure I declaration in respect to shipping bill No.2060231 dated 20.02.2009. These documents shows that the accused has exported the goods under shipping bill No.2060231 after examination by the Inspector and Superintendent of Customs. In Ex.P.20 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.20 it is specifically mentioned that duty drawback amount of 46 C.C.No. 33942/2011 Rs.8,49,648/- was claimed under the said shipping bill. Further, in export invoice and also in packing lists, the quantity of 100 % cotton knitted men's T.shirts with quantity, rate and amount is mentioned. Hence Ex.P.20 shows that the accused has claimed duty drawback amount of Rs.8,49,648/- under shipping bill No.2060231 dated 20.02.2009.
74. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise office, export invoices, packing lists, Form ARE-1 etc., in respect to M/s Tirupati Exports, wherein sheet No.49 to 53 pertaining to ARE-1 No.8. The documents pertaining to ARE-1 No.8 reveals that the accused has filed the application on 24.02.2009 for inspection and necessary attestation in respect to shipment of goods under Invoice No.012/2008-09 dated 20.02.2009 and examination report issued by the Inspector and Superintendent of Central Excise that total number of packages are 492 cartons and also issued certificate that they have opened and examined the packages of 10% goods and found that the particulars stated in the description given overleaf and the packaging list is correct. Further export invoice and packing list reveals the quantity, rate, amount and number of cartons. These documents shows that 10 % of 47 C.C.No. 33942/2011 the goods under shipping bill No.2060231 was examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report and thereafter the said goods were exported to UAE from Tuticorin Port.
75. C.W.15 - Sri. R. Prakash Babu, the then Inspector of Customs, Tuticorin examined as P.W.12 and he identified Ex.P.20 shipping bill and relevant enclosures in respect to M/s Tirupati Exports and he and Superintendent M. Rajashekharan inspected the container and verified the correctness of container number as well as the intact condition of the Central Excise lead seal and perused the documents and admitted the same for examination and they did not open the container as it was sailed by the Central Excise Officer.
76. C.W.21 - Sri. G. Gunashekharan the then Superintendent of Customs at Tuticorin, Tamilnadu examined as P.W.18 and he identified his signature at Ex.P.20 and deposed that they have not opened and verified the consignment, but they verified the container number and seal of the container. In his cross- examination, he admitted that he has no personal knowledge with regard to how many boxes in the container.
48 C.C.No. 33942/201177. Further, C.W.23 - Sri. M. Dharmarajan the then Superintendent of Customs examined as P.W.20 and he deposed that when consignments brought to their office, then his subordinate Inspector has to verify the documents and ensure that it was matching with the container number and the consignment already examined by the Central Excise officers, hence, they will not examined the consignments. In his cross-examination, he clearly admitted that the physical examination done and report signed by the Superintendent and Inspector of Central Excise and it was done in the factory premises itself while loading the container.
78. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also admitted in his cross-examination that the 14 consignments are all past consignments.
79. As per the evidence of P.W.12, 18, and 20, the Customs Officers who were working at Tuticorin Port have 49 C.C.No. 33942/2011 not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal. As per Ex.P.7 examination report and certificate issued by the Central Excise Superintendent and Inspector, 10% goods were examined by them. Further, P.W.36 admits that no incriminating documents placed before him in respect to 12 past consignments except non receipt of export proceeds in foreign exchange and the admission statement of the accused.
80. It is pertinent to note that the said consignment under shipping bill No.2060231 was exported in the month of February 2009 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers. Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces 50 C.C.No. 33942/2011 and its value in the export documents in respect to shipping bill No.2060231. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of packages or number of pieces and its value in the export document in respect to shipping bill No.2060231 dated 20.02.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2060231 dated 20.02.2009.
Sl.No.5 - Shipping Bill No.2062306 dated 26.02.2009
81. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme under Shipping Bill No.2062306 dated 26.02.2009.
82. Ex.P.13 is the Examination Report along with shipping bill for export, Annexure C particulars, check list, export invoice in respect to shipping bill No.2062306 dated 26.02.2009. These documents shows that the accused has exported the goods under shipping bill 51 C.C.No. 33942/2011 No.2062306 after examination by the Inspector and Superintendent of Customs. In Ex.P.13 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.13 it is specifically mentioned that duty drawback amount of Rs.8,44,068/- was claimed under the said shipping bill. Further, in export invoice and also in packing lists, the quantity of 100 % cotton knitted men's T.shirts with quantity, rate and amount is mentioned. Hence Ex.P.13 shows that the accused has claimed duty drawback amount of Rs.8,44,068/- under shipping bill No.2062306 dated 26.02.2009.
83. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise office, export invoices, packing lists, Form ARE-1 etc., in respect to M/s Tirupati Exports, wherein sheet No.54 to 57 pertaining to ARE-1 No.9. The documents pertaining to ARE-1 No.9 reveals that examination report issued by the Inspector and Superintendent of Central Excise in respect to invoice No.013/2008-09 dated 25.02.2009 that total number of packages are 463 cartons and also issued certificate that they have opened and examined the packages of 10% goods and found that the particulars stated in the description given overleaf and the packaging 52 C.C.No. 33942/2011 list is correct. Further export invoice and packing list reveals the quantity, rate, amount and number of cartons. These documents shows that 10 % of the goods under shipping bill No.2062306 was examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report and thereafter the said goods were exported to UAE from Tuticorin Port.
84. C.W.12 - Sri. S. Vijayaraghavan, the then Superintendent of Customs House, Tuticorin examined as P.W.9 and he deposed that Ex.P.13 shipping bill and relevant enclosures in respect to M/s Tirupati Exports bearing shipping bill No.2062306 dated 26.02.2009 wherein the the exporter exported 100% cotton knitted men's T Shirts and the inspector has verified the shipping bill and other export documents and allowed the container for shipping and thereafter he checked the shipping bill. In his cross-examination, he admits that after complying the procedures, the Customs Official will put OTL on the container.
85. C.W.14 - Sri. S. Sundara Ganapathy the then Inspector of Customs House, Tuticorin examined as P.W.11 and he identified his signature on Ex.P.13 and 53 C.C.No. 33942/2011 deposed that he verified the shipping bill and connected export documents and allowed the container for shipment.
86. C.W.17 - Sri. E. Ramachandran the then Inspector of Customs at Tuticorin, Tamilnadu examined as P.W.14 and he identified his signature on Ex.P.13. He deposed that he has not physically verified the container and only verified the seal on container. In his cross- examination, he admits that material mentioned in the shipping bill were examined by the Central Excise Officers at the factory and after satisfaction of physical examination of the materials, Central Excise Officers put their signatures on the examination report and generally in the port, they used to verify the documents and not the container if it is sealed by the Central Excise Department and he did not open the consigned and not physically verified.
87. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also 54 C.C.No. 33942/2011 admitted in his cross-examination that the 14 consignments are all past consignments.
88. As per the evidence of P.W.9, 11 and 14, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal. As per Ex.P.7 examination report and certificate issued by the Central Excise Superintendent and Inspector, 10% goods were examined by them. Further, P.W.36 admits that no incriminating documents placed before him in respect to 12 past consignments except non receipt of export proceeds in foreign exchange and the admission statement of the accused.
89. It is pertinent to note that the said consignment under shipping bill No.2062306 was exported in the month of February 2009 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers.
55 C.C.No. 33942/2011Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2062306. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of packages or number of pieces and its value in the export document in respect to shipping bill No.2062306 dated 26.02.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2062306 dated 26.02.2009.
Sl.No.6 - Shipping Bill No.2062317 dated 26.02.2009
90. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme under Shipping Bill No.2062317 dated 26.02.2009.
56 C.C.No. 33942/201191. Ex.P.14 is the Examination Report along with shipping bill for export, Annexure C particulars, check list, export invoice in respect to shipping bill No.2062317 dated 26.02.2009. These documents shows that the accused has exported the goods under shipping bill No.2062317 after examination by the Inspector and Superintendent of Customs. In Ex.P.14 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.14 it is specifically mentioned that duty drawback amount of Rs.8,60,436/- was claimed under the said shipping bill. Further, in export invoice and also in packing lists, the quantity of 100 % cotton knitted men's T.shirts with quantity, rate and amount is mentioned. Hence Ex.P.14 shows that the accused has claimed duty drawback amount of Rs.8,60,436/- under shipping bill No.2062317 dated 26.02.2009.
92. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise office, export invoices, packing lists, Form ARE-1 etc., in respect to M/s Tirupati Exports, wherein sheet No.58 to 61 pertaining to ARE-1 No.10. The documents pertaining to ARE-1 No.10 reveals that examination report issued by 57 C.C.No. 33942/2011 the Inspector and Superintendent of Central Excise in respect to invoice No.014/2008-09 dated 25.02.2009 that total number of packages are 423 cartons and also issued certificate that they have opened and examined the packages of 10% goods and found that the particulars stated in the description given overleaf and the packaging list is correct. Further export invoice and packing list reveals the quantity, rate, amount and number of cartons. These documents shows that 10 % of the goods under shipping bill No.2062317 was examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report and thereafter the said goods were exported to UAE from Tuticorin Port.
93. C.W.12 - Sri. S. Vijayaraghavan, the then Superintendent of Customs House, Tuticorin examined as P.W.9 and he deposed that Ex.P.14 shipping bill and relevant enclosures in respect to M/s Tirupati Exports bearing shipping bill No.2062317 dated 26.02.2009 wherein the the exporter exported 100% cotton knitted men's T Shirts and the inspector has verified the shipping bill and other export documents and allowed the container for shipping and thereafter he checked the shipping bill. In his cross-examination, he admits that after complying 58 C.C.No. 33942/2011 the procedures, the Customs Official will put OTL on the container.
94. C.W.14 - Sri. S. Sundara Ganapathy the then Inspector of Customs House, Tuticorin examined as P.W.11 and he identified his signature on Ex.P.14 and deposed that he verified the shipping bill and connected export documents and allowed the container for shipment.
95. C.W.17 - Sri. E. Ramachandran the then Inspector of Customs at Tuticorin, Tamilnadu examined as P.W.14 and he identified his signature on Ex.P.14. He deposed that he has not physically verified the container and only verified the seal on container. In his cross- examination, he admits that material mentioned in the shipping bill were examined by the Central Excise Officers at the factory and after satisfaction of physical examination of the materials, Central Excise Officers put their signatures on the examination report and generally in the port, they used to verify the documents and not the container if it is sealed by the Central Excise Department and he did not open the consigned and not physically verified.
96. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his 59 C.C.No. 33942/2011 cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also admitted in his cross-examination that the 14 consignments are all past consignments.
97. As per the evidence of P.W.9, 11 and 14, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal. As per Ex.P.7 examination report and certificate issued by the Central Excise Superintendent and Inspector, 10% goods were examined by them. Further, P.W.36 admits that no incriminating documents placed before him in respect to 12 past consignments except non receipt of export proceeds in foreign exchange and the admission statement of the accused.
98. It is pertinent to note that the said consignment under shipping bill No.2062317 was exported in the month of February 2009 and it is a past consignment and 60 C.C.No. 33942/2011 it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers. Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2062317. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of packages or number of pieces and its value in the export document in respect to shipping bill No.2062317 dated 26.02.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2062317 dated 26.02.2009.
61 C.C.No. 33942/2011Sl.No.7 - Shipping Bill No.2068608 dated 11.03.2009
99. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme under Shipping Bill No.2068608 dated 11.03.2009.
100. Ex.P.23 is the Examination Report along with shipping bill for export, Annexure C particulars, check list, export invoice, packing list, Annexure I exporter's declaration and Form SDF in respect to shipping bill No.2068608 dated 11.03.2009. These documents shows that the accused has exported the goods under shipping bill No.2068608 after examination by the Inspector and Superintendent of Customs. In Ex.P.23 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.23 it is specifically mentioned that duty drawback amount of Rs.8,54,856/- was claimed under the said shipping bill. Further, in export invoice and also in packing lists, the quantity of 100 % cotton knitted men's T.shirts with quantity, rate and amount is mentioned. Hence Ex.P.23 shows that the accused has claimed duty drawback amount of Rs.8,54,856/- under shipping bill No.2068608 dated 11.03.2009.
62 C.C.No. 33942/2011101. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise office, export invoices, packing lists, Form ARE-1 etc., in respect to M/s Tirupati Exports, wherein sheet No.62 to 66 pertaining to ARE-1 No.11. The documents pertaining to ARE-1 No.11 reveals that examination report issued by the Inspector and Superintendent of Central Excise in respect to invoice No.015/2008-09 dated 10.03.2009 that total number of packages are 398 cartons and also issued certificate that they have opened and examined the packages of 10% goods and found that the particulars stated in the description given overleaf and the packaging list is correct. Further export invoice and packing list reveals the quantity, rate, amount and number of cartons. These documents shows that 10 % of the goods under shipping bill No.2068608 was examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report and thereafter the said goods were exported to UAE from Tuticorin Port.
102. C.W.19 - Sri. K. Mariappan, the then Superintendent of Customs House, Tuticorin examined as P.W.17 and he deposed that Ex.P.23 shipping bill and total number of packages 398. In his cross-examination 63 C.C.No. 33942/2011 he admits that he has no personal knowledge with regard to how many boxes in the container and he has not stated in his statement about the number of boxes. Further, he admits that the container subjected to verification by the various officers and after due satisfaction, the container came to the green gate.
103. C.W.22 - Sri. P. Selvaraj the then Superintendent of Customs House, Tuticorin examined as P.W.19 and he identified his signature on Ex.P.23 and deposed that he has not physically verified the consignment which was brought to their office and when the shipping bill produced, then the Central Excise Officers have to examine the goods physically and seal the container under their supervision and the Customs Officers cannot physically examine the goods. He further states, Ex.P.23 was produced by the M/s Tirupati Exporters for the consignment of Men's T shirts and the said consignment also he has not physically examined.
104. C.W.27 - Sri. P. Senthil Kumar the then Inspector of Customs at Tuticorin, Tamilnadu examined as P.W.22 and he identified his signature on Ex.P.23. He deposed that his duty to verify the documents brought by the Customs House Agent and they are duty bound to verify the container number and seal number and also 64 C.C.No. 33942/2011 documents and they never open the consignment for verification. In his cross-examination he admits that the consignment, before loading into the container has been verified physically and after due satisfaction of the Central Excise Officers, they will permit to load the consignment into the container and Central Excise Superintendent will prepare physical examination report in this regard and put lead seal.
105. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also admitted in his cross-examination that the 14 consignments are all past consignments.
106. As per the evidence of P.W.17, 19 and 22, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal. As per Ex.P.7 65 C.C.No. 33942/2011 examination report and certificate issued by the Central Excise Superintendent and Inspector, 10% goods were examined by them. Further, P.W.36 admits that no incriminating documents placed before him in respect to 12 past consignments except non receipt of export proceeds in foreign exchange and the admission statement of the accused.
107. It is pertinent to note that the said consignment under shipping bill No.2068608 was exported in the month of March 2009 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers. Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2068608. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to 66 C.C.No. 33942/2011 show that the accused has mis-declared the number of packages or number of pieces and its value in the export document in respect to shipping bill No.2068608 dated 11.03.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2068608 dated 11.03.2009.
Sl.No.8 - Shipping Bill No.2068609 dated 11.03.2009
108. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme under Shipping Bill No.2068609 dated 11.03.2009.
109. Ex.P.22 is the Examination Report along with shipping bill for export, Annexure C particulars, check list, export invoice, packing list, Annexure I exporter's declaration and Form SDF in respect to shipping bill No.2068609 dated 11.03.2009. These documents shows that the accused has exported the goods under shipping bill No.2068609 after examination by the Inspector and Superintendent of Customs. In Ex.P.22 shipping bill, it is specifically mentioned that the said consignment was not 67 C.C.No. 33942/2011 opened for physical examination by the Customs. Further, in Ex.P.22 it is specifically mentioned that duty drawback amount of Rs.8,58,948/- was claimed under the said shipping bill. Further, in export invoice and also in packing lists, the quantity of 100 % cotton knitted men's T.shirts with quantity, rate and amount is mentioned. Hence Ex.P.22 shows that the accused has claimed duty drawback amount of Rs.8,58,948/- under shipping bill No.2068609 dated 11.03.2009.
110. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise office, export invoices, packing lists, Form ARE-1 etc., in respect to M/s Tirupati Exports, wherein sheet No.67 to 71 pertaining to ARE-1 No.12. The documents pertaining to ARE-1 No.12 reveals that examination report issued by the Inspector and Superintendent of Central Excise in respect to invoice No.016/2008-09 dated 10.03.2009 that total number of packages are 450 cartons and also issued certificate that they have opened and examined the packages of 10% goods and found that the particulars stated in the description given overleaf and the packaging list is correct. Further export invoice and packing list reveals the quantity, rate, amount and number of cartons. These documents shows that 10 % of the goods under 68 C.C.No. 33942/2011 shipping bill No.2068609 was examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report and thereafter the said goods were exported to UAE from Tuticorin Port.
111. C.W.19 - Sri. K. Mariappan, the then Superintendent of Customs House, Tuticorin examined as P.W.17 and he deposed that Ex.P.22 shipping bill and other documents and he verified the container number and seal of the container is in intact. In his cross- examination he admits that he has no personal knowledge with regard to how many boxes in the container and he has not stated in his statement about the number of boxes. Further, he admits that the container subjected to verification by the various officers and after due satisfaction, the container came to the green gate.
112. C.W.22 - Sri. P. Selvaraj the then Superintendent of Customs House, Tuticorin examined as P.W.19 and he identified his signature on Ex.P.22 and deposed that he has not physically verified the consignment which was brought to their office and when the shipping bill produced, then the Central Excise Officers have to examine the goods physically and seal the container under their supervision and the Customs 69 C.C.No. 33942/2011 Officers cannot physically examine the goods. He further states, Ex.P.22 was produced by the M/s Tirupati Exporters for the consignment of Men's T shirts and the said consignment also he has not physically examined.
113. C.W.27 - Sri. P. Senthil Kumar the then Inspector of Customs at Tuticorin, Tamilnadu examined as P.W.22 and he identified his signature on Ex.P.22. He deposed that his duty to verify the documents brought by the Customs House Agent and they are duty bound to verify the container number and seal number and also documents and they never open the consignment for verification. In his cross-examination he admits that the consignment, before loading into the container has been verified physically and after due satisfaction of the Central Excise Officers, they will permit to load the consignment into the container and Central Excise Superintendent will prepare physical examination report in this regard and put lead seal.
114. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in 70 C.C.No. 33942/2011 foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also admitted in his cross-examination that the 14 consignments are all past consignments.
115. As per the evidence of P.W.17, 19 and 22, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal. As per Ex.P.7 examination report and certificate issued by the Central Excise Superintendent and Inspector, 10% goods were examined by them. Further, P.W.36 admits that no incriminating documents placed before him in respect to 12 past consignments except non receipt of export proceeds in foreign exchange and the admission statement of the accused.
116. It is pertinent to note that the said consignment under shipping bill No.2068609 was exported in the month of March 2009 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the 71 C.C.No. 33942/2011 packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers. Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2068609. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of packages or number of pieces and its value in the export document in respect to shipping bill No.2068609 dated 11.03.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2068609 dated 11.03.2009.
Sl.No.9 - Shipping Bill No.2074284 dated 23.03.2009
117. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under 72 C.C.No. 33942/2011 Duty Drawback Scheme under Shipping Bill No.2074284 dated 23.03.2009.
118. Ex.P.15 is the Examination Report along with shipping bill for export, Annexure C particulars, check list, export invoice, packing list in respect to shipping bill No.2074284 dated 23.03.2009. These documents shows that the accused has exported the goods under shipping bill No.2074284 after examination by the Inspector and Superintendent of Customs. In Ex.P.15 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.15 it is specifically mentioned that duty drawback amount of Rs.8,42,952/- was claimed under the said shipping bill. Further, in export invoice and also in packing lists, the quantity of 100 % cotton knitted men's T.shirts with quantity, rate and amount is mentioned. Hence Ex.P.15 shows that the accused has claimed duty drawback amount of Rs.8,42,952/- under shipping bill No.2074284 dated 23.03.2009.
119. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise office, export invoices, packing lists, Form ARE-1 etc., in respect to M/s Tirupati Exports, wherein sheet No.72 to 73 C.C.No. 33942/2011 76 pertaining to ARE-1 No.13. The documents pertaining to ARE-1 No.13 reveals that examination report issued by the Inspector and Superintendent of Central Excise in respect to invoice No.017/2008-09 dated 20.03.2009 that total number of packages are 445 cartons and also issued certificate that they have opened and examined the packages of 10% goods and found that the particulars stated in the description given overleaf and the packaging list is correct. Further export invoice and packing list reveals the quantity, rate, amount and number of cartons. These documents shows that 10 % of the goods under shipping bill No.2074284 was examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report and thereafter the said goods were exported to UAE from Tuticorin Port.
120. C.W.12 - Sri. S. Vijayaraghavan, the then Superintendent of Customs House, Tuticorin examined as P.W.9 and he deposed that Ex.P.15 shipping bill and relevant enclosures in respect to M/s Tirupati Exports bearing shipping bill No.2074284 dated 23.03.2009 and the inspector has verified the shipping bill and other export documents and allowed the container for shipping and thereafter he checked the shipping bill. In his cross- examination, he admits that after complying the 74 C.C.No. 33942/2011 procedures, the Customs Official will put OTL on the container.
121. C.W.17 - Sri. E. Ramachandran the then Inspector of Customs at Tuticorin, Tamilnadu examined as P.W.14 and he identified his signature on Ex.P.15. He deposed that he has not physically verified the container and only verified the seal on container. In his cross- examination, he admits that material mentioned in the shipping bill were examined by the Central Excise Officers at the factory and after satisfaction of physical examination of the materials, Central Excise Officers put their signatures on the examination report and generally in the port, they used to verify the documents and not the container if it is sealed by the Central Excise Department and he did not open the consigned and not physically verified.
122. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also 75 C.C.No. 33942/2011 admitted in his cross-examination that the 14 consignments are all past consignments.
123. As per the evidence of P.W.9 and 14, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal. As per Ex.P.7 examination report and certificate issued by the Central Excise Superintendent and Inspector, 10% goods were examined by them. Further, P.W.36 admits that no incriminating documents placed before him in respect to 12 past consignments except non receipt of export proceeds in foreign exchange and the admission statement of the accused.
124. It is pertinent to note that the said consignment under shipping bill No.2074284 was exported in the month of March 2009 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers.
76 C.C.No. 33942/2011Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2074284. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of packages or number of pieces and its value in the export document in respect to shipping bill No.2074284 dated 23.03.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2074284 dated 23.03.2009.
Sl.No.10 - Shipping Bill No.2074285 dated 23.03.2009
125. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme under Shipping Bill No.2074285 dated 23.03.2009.
77 C.C.No. 33942/2011126. Ex.P.16 is the Examination Report along with shipping bill for export, Annexure C particulars, check list, export invoice, packing list in respect to shipping bill No.2074285 dated 23.03.2009. These documents shows that the accused has exported the goods under shipping bill No.2074285 after examination by the Inspector and Superintendent of Customs. In Ex.P.16 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.16 it is specifically mentioned that duty drawback amount of Rs.8,42,952/- was claimed under the said shipping bill. Further, in export invoice and also in packing lists, the quantity of 100 % cotton knitted men's T.shirts with quantity, rate and amount is mentioned. Hence Ex.P.16 shows that the accused has claimed duty drawback amount of Rs.8,42,952/- under shipping bill No.2074285 dated 23.03.2009.
127. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise office, export invoices, packing lists, Form ARE-1 etc., in respect to M/s Tirupati Exports, wherein sheet No.77 to 81 pertaining to ARE-1 No.14. The documents pertaining to ARE-1 No.14 reveals that examination report issued by the Inspector and Superintendent of Central Excise in 78 C.C.No. 33942/2011 respect to invoice No.018/2008-09 dated 20.03.2009 that total number of packages are 470 cartons and also issued certificate that they have opened and examined the packages of 10% goods and found that the particulars stated in the description given overleaf and the packaging list is correct. Further export invoice and packing list reveals the quantity, rate, amount and number of cartons. These documents shows that 10 % of the goods under shipping bill No.2074285 was examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report and thereafter the said goods were exported to UAE from Tuticorin Port.
128. C.W.12 - Sri. S. Vijayaraghavan, the then Superintendent of Customs House, Tuticorin examined as P.W.9 and he deposed that Ex.P.16 shipping bill and relevant enclosures in respect to M/s Tirupati Exports bearing shipping bill No.2074285 dated 23.03.2009 and the inspector has verified the shipping bill and other export documents and allowed the container for shipping and thereafter he checked the shipping bill. In his cross- examination, he admits that after complying the procedures, the Customs Official will put OTL on the container.
79 C.C.No. 33942/2011129. C.W.17 - Sri. E. Ramachandran the then Inspector of Customs at Tuticorin, Tamilnadu examined as P.W.14 and he identified his signature on Ex.P.16. He deposed that he has not physically verified the container and only verified the seal on container. In his cross- examination, he admits that material mentioned in the shipping bill were examined by the Central Excise Officers at the factory and after satisfaction of physical examination of the materials, Central Excise Officers put their signatures on the examination report and generally in the port, they used to verify the documents and not the container if it is sealed by the Central Excise Department and he did not open the consigned and not physically verified.
130. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also admitted in his cross-examination that the 14 consignments are all past consignments.
80 C.C.No. 33942/2011131. As per the evidence of P.W.9 and 14, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal. As per Ex.P.7 examination report and certificate issued by the Central Excise Superintendent and Inspector, 10% goods were examined by them. Further, P.W.36 admits that no incriminating documents placed before him in respect to 12 past consignments except non receipt of export proceeds in foreign exchange and the admission statement of the accused.
132. It is pertinent to note that the said consignment under shipping bill No.2074285 was exported in the month of March 2009 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers. Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the 81 C.C.No. 33942/2011 quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2074285. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of packages or number of pieces and its value in the export document in respect to shipping bill No.2074285 dated 23.03.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2074285 dated 23.03.2009.
Sl.No.11 - Shipping Bill No.2076953 dated 27.03.2009
133. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme under Shipping Bill No.2076953 dated 27.03.2009.
134. Ex.P.18 is the Examination Report along with shipping bill for export, Annexure C particulars, check list, export invoice, packing list, Annexure I Exporter's 82 C.C.No. 33942/2011 declaration and Form SDF in respect to shipping bill No.2076953 dated 27.03.2009. These documents shows that the accused has exported the goods under shipping bill No.2076953 after examination by the Inspector and Superintendent of Customs. In Ex.P.18 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.18 it is specifically mentioned that duty drawback amount of Rs.8,57,460/- was claimed under the said shipping bill. Further, in export invoice and also in packing lists, the quantity of 100 % cotton knitted men's T.shirts with quantity, rate and amount is mentioned. Hence Ex.P.18 shows that the accused has claimed duty drawback amount of Rs.8,57,460/- under shipping bill No.2076953 dated 27.03.2009.
135. C.W.14 - Sri. S. Sundara Ganapathy the then Inspector of Customs House, Tuticorin examined as P.W.11 and he identified his signature on Ex.P.18 and deposed that Ex.P.18 shipping bill and relevant documents in respect to M/s Tirupati Exports and the container arrived at the Wharf area after getting Let Export Order from Superintendent and he verified the shipping bill and connected export documents and allowed the container for shipment. In his cross-examination, he admits that after satisfaction of the documents, he allowed 83 C.C.No. 33942/2011 the consignment for shipment and if there is any discrepancies in the document, he would not allow the shipment and he did not find any discrepancies in respect to said consignment.
136. C.W.15 - Sri. R. Prakash Babu the then Inspector of Customs at Tuticorin, Tamilnadu examined as P.W.12 and he identified his signature on Ex.P.18. He deposed that the representative of the customs house agent came along with the container and handed over the sealed cover containing the examination report of Central Excise department, SDF declaration etc. and accordingly he registered the documents in EDI system and he himself and superintendent inspected the container and verified the container number as well as the intact condition of the Central Excise lead seal and they perused the documents and admitted the same for examination under registration and they did not open the container, because it was sealed by the Central Excise Officer and the seal was found intact and container number was also tallied and thereafter Superintendent had issued LET export order.
137. C.W.18 - Sri. Rajasekaran the then Superintendent of Customs, Tuticorin, Tamilnadu examined as P.W.15 and he deposed that Ex.P.18 shipping bill No.2076953 dated 27.03.2009 wherein M/s 84 C.C.No. 33942/2011 Tirupati Exports exported the 100% cotton knitted Men's Tshirts to M/s Ankita Trading and the exporter made the declaration for non availment of CENVAT credit. In his cross-examination, he admitted that the Superintendent and Inspector of Central Excise had examined the export goods and after due satisfaction, they have issued examination report and he has received the examination report along with the container and after due satisfaction, he allowed the container for export.
138. C.W.20 - Sri. G. Somasundaram the then Superintendent of Customs examined as P.W.16 and he identified his signature on Ex.P.18 and deposed that he has not opened the consignment and he only verified the shipping bills and connect documents and as per the bill, the container contains knitted men's Tshirts. In his cross- examination, he admits that physical examination of goods is required to claim the duty drawback under the scheme and the physical examination of goods containing the container examined by the Central Excise officers and after due satisfaction, they will issue physical examination report and the same is verified by him and thereafter he cleared the consignment.
139. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his 85 C.C.No. 33942/2011 cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also admitted in his cross-examination that the 14 consignments are all past consignments.
140. As per the evidence of P.W.11, 12, 15 and 16, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal.
141. It is pertinent to note that the said consignment under shipping bill No.2076953 was exported in the month of March 2009 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers. Further the said consignment was already exported and 86 C.C.No. 33942/2011 reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2076953. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of packages or number of pieces and its value in the export document in respect to shipping bill No.2076953 dated 27.03.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2076953 dated 27.03.2009.
Sl.No.12 - Shipping Bill No.2076954 dated 27.03.2009
142. As per the prosecution case, the accused exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under Duty Drawback Scheme under Shipping Bill No.2076954 dated 27.03.2009.
87 C.C.No. 33942/2011143. Ex.P.19 is the Examination Report along with shipping bill for export, Annexure C particulars, check list, export invoice, packing list, Annexure I Exporter's declaration and Form SDF in respect to shipping bill No.2076954 dated 27.03.2009. These documents shows that the accused has exported the goods under shipping bill No.2076954 after examination by the Inspector and Superintendent of Customs. In Ex.P.19 shipping bill, it is specifically mentioned that the said consignment was not opened for physical examination by the Customs. Further, in Ex.P.19 it is specifically mentioned that duty drawback amount of Rs.8,56,344/- was claimed under the said shipping bill. Further, in export invoice and also in packing lists, the quantity of 100 % cotton knitted men's T.shirts with quantity, rate and amount is mentioned. Hence Ex.P.19 shows that the accused has claimed duty drawback amount of Rs.8,56,344/- under shipping bill No.2076954 dated 27.03.2009.
144. C.W.14 - Sri. S. Sundara Ganapathy the then Inspector of Customs House, Tuticorin examined as P.W.11 and he identified his signature on Ex.P.19 and deposed that Ex.P.19 shipping bill and relevant documents in respect to M/s Tirupati Exports and the container arrived at the Wharf area after getting Let Export Order from Superintendent and he verified the 88 C.C.No. 33942/2011 shipping bill and connected export documents and allowed the container for shipment. In his cross-examination, he admits that after satisfaction of the documents, he allowed the consignment for shipment and if there is any discrepancies in the document, he would not allow the shipment and he did not find any discrepancies in respect to said consignment.
145. C.W.15 - Sri. R. Prakash Babu the then Inspector of Customs at Tuticorin, Tamilnadu examined as P.W.12 and he identified his signature on Ex.P.19. He deposed that the representative of the customs house agent came along with the container and handed over the sealed cover containing the examination report of Central Excise department, SDF declaration etc. and accordingly he registered the documents in EDI system and he himself and superintendent inspected the container and verified the container number as well as the intact condition of the Central Excise lead seal and they perused the documents and admitted the same for examination under registration and they did not open the container, because it was sealed by the Central Excise Officer and the seal was found intact and container number was also tallied and thereafter Superintendent had issued LET export order.
89 C.C.No. 33942/2011146. C.W.20 - Sri. G. Somasundaram the then Superintendent of Customs examined as P.W.16 and he identified his signature on Ex.P.19 and deposed that he has not opened the consignment and he only verified the shipping bills and connect documents and as per the bill, the container contains knitted men's Tshirts. In his cross- examination, he admits that physical examination of goods is required to claim the duty drawback under the scheme and the physical examination of goods containing the container examined by the Central Excise officers and after due satisfaction, they will issue physical examination report and the same is verified by him and thereafter he cleared the consignment.
147. C.W.49 - Sri. Rajendran the then Commissioner of Customs examined as P.W.36 and he admitted in his cross-examination that Sl.No.1 to 12 of page 2 of Ex.P.47 sanction order are the past consignments and no incriminating documents placed before him in respect to said consignment except non receipt of export proceeds in foreign exchange and the admission statement of the accused. Further, P.W.40 - Investigation Officer also admitted in his cross-examination that the 14 consignments are all past consignments.
90 C.C.No. 33942/2011148. As per the evidence of P.W.11, 12 and 16, the Customs Officers who were working at Tuticorin Port have not physically examined the goods in the sealed container which was sealed by the Central Excise Officers after physical examination and they have only verified exports documents and intact of the lead seal.
149. It is pertinent to note that the said consignment under shipping bill No.2076954 was exported in the month of March 2009 and it is a past consignment and it was physically examined by the Central Excise Superintendent and Inspector. Thereafter, the Customs Officers at Tuticorin port have allowed the said sealed container for export and no one physically examined the packages or quantity of the goods in the said container after putting lead seal by the Central Excise Officers. Further the said consignment was already exported and reached the destination. No material available before the Court to show that there is any discrepancy in the quantity of the goods or mis-declaration or false declaration of number of packages or number of pieces and its value in the export documents in respect to shipping bill No.2076954. Though the accused has claimed duty drawback amount under the said shipping bill, but there is no material available before the Court to show that the accused has mis-declared the number of 91 C.C.No. 33942/2011 packages or number of pieces and its value in the export document in respect to shipping bill No.2076954 dated 27.03.2009. Hence, the prosecution has failed to establish that the accused has mis-declared the number of packages, number of pieces and its value in the export documents under duty drawback scheme covered under the shipping bill No.2076954 dated 27.03.2009.
150. The accused filed his statement u/Sec.313 (5) of Cr.P.C. wherein he contended at para No.8 that the allegations made by the DRI and CBI in the charge sheet with reference to 14 shipping bills from 2008 and 2009 in which 12 shipping bills are past consignment and no investigation to that effect has been made and nor produced any material to show any discrepancies in the export material but on the contrary all the witnesses categorically admitted that all the export documents vis a vis the physical examination of the goods satisfactorily accepted by the department and thereafter with satisfaction of the department, goods were permitted to export and such being the case the prosecution cannot allege dishonestly and fraudulently mis-declared the number of packages in order to get duty drawback amount.
92 C.C.No. 33942/2011151. As discussed above, out of 14 shipping bills, Sl.No.1 to 12 pertaining to past consignments and after physical examination of consignments by the Central Excise Officers, the consignments loaded in the containers and sealed by the Central Excise Officers and after clearance from the Customs Department at port, the said goods were exported to Dubai. It is pertinent to note that, thereafter the said sealed 12 containers were not called back and opened or verified by none of the Customs Officers or DRI Officers or Central Excise Officers to show any discrepancies in declaring the quantity and value of the goods mentioned in the export documents and sealed containers. Admittedly, the said consignments were already exported long back and not called back for physical examination to show any mis-declaration or false declaration of the quantity and value of the goods in the containers. Only on the basis of statement of accused recorded u/Sec.108 of Customs Act, it cannot be accepted that there was a mis-declaration of the quantity and its value in the export documents or any discrepancies found in the exported goods without corroborating evidence in respect to above said 12 consignments.
152. As discussed above, in respect to 12 past consignment, there is no corroborative evidence produced before the Court to show that there was a mis-declaration 93 C.C.No. 33942/2011 of quantity and its value in the export documents. Hence, without physical examination of the goods by the officers of Central Excise or Customs or DRI in respect to above said 12 past consignments, it cannot be assumed that there was a mis-declaration in the export documents. Though the accused has availed duty drawback amount in respect to above said 12 past consignments, but the evidence available before the Court do not show that there was a mis-declaration. Under such circumstances, the version of the prosecution about mis-declaration of quantity and its value in the export documents in respect to 12 past consignments under Shipping Bills bearing Nos.2028123 dated 22.12.2008, 2042815 dated 19.01.2009, 2043522 dated 20.01.2009, 2060231 dated 20.02.2009, 2062306 dated 26.02.2009, 2062317 dated 26.02.2009, 2068608 dated 11.03.2009, 2068609 dated 11.03.2009, 2074284 dated 23.03.2009, 2074285 dated 23.03.2009, 2076953 dated 27.03.2009, 2076954 dated 27.03.2009 cannot be accepted. Hence, prosecution has failed to establish that the accused mis-declared the number of packages and number of pieces and its value in the export documents under Duty Drawback Scheme covered under above said 12 shipping bills.
94 C.C.No. 33942/2011Sl.No.13 Shipping Bill No.2101235 dated 27.05.2009 and Sl.No.14 Shipping Bill No.2101554 dated 27.05.2009,
153. As per the prosecution case, the accused has exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under shipping bill No.2101235 dated 27.05.2009 under Duty Drawback Scheme by showing FOB value at Rs.1,01,19,901/- and claimed duty drawback amount and obtained ineligible drawback amount of Rs.8,56,344/- under Scroll No.1810/2009 dated 09.06.2009.
154. As per the prosecution case, the accused has exported the factory stuffed bought out non-duty paid 100% cotton knitted men's T-Shirts to Ankita Trading FZE at P.O. Box No.10559, RAKFTZ, Rasal Khaima, UAE under shipping bill No.2101554 dated 27.05.2009 under Duty Drawback Scheme by showing FOB value at Rs.1,01,22,404/- and claimed duty drawback amount of Rs.8,54,856/-. But the said amount was not sanctioned as per the instructions of DRI.
155. Ex.P.32 is the shipping bills for export bearing No.2101235 and 2101554 both dated 27.05.2009. These documents reveals that M/s Tirupati Exports has exported 95 C.C.No. 33942/2011 2 consignments i.e.100% cotton knitted Men's Tshirts under duty drawback scheme under Invoice No.001/2009- 10 dated 23.05.2009 and 002/2009-10 dated 23.05.2009. Further M/s Tirupati Exports claimed the duty drawback of Rs.8,56,344/- under shipping bill No.2101235 dated 27.05.2009 and Rs.8,54,856/- under shipping bill No.2101554 dated 27.05.2009. Further the Superintendent and Inspector of Customs have issued LET Export Order on 30.05.2009. Further, in these documents the port of loading mentioned as Tuticorin Customs House and the port of discharge as Jabel Ali, UAE. The consignee details mentioned as Ankita Trading FZE, P.O.No.10559, RAKFTZ, Raisal Khaimah, UAE. Further, the number of packages, descriptions, quantity, rate of goods also mentioned in the shipping bills along with the container details. As per shipping bill No.2101235 dated 27.05.2009, total packages are 487. As per shipping bill No.2101554 dated 27.05.2009, total packages are 488. In Ex.P.32 shipping bills, it is specifically mentioned that the said consignments were not opened for physical examination by the Customs.
156. Further Ex.P.7 is the file containing the applications for inspection, examination reports for factory sealed packgs/contrs, certificates by the Central Excise 96 C.C.No. 33942/2011 office, export invoices, packing lists, Form ARE-1 etc., in respect to M/s Tirupati Exports.
157. In Ex.P.7, sheet No.82 to 86 pertaining to ARE-1 No.1. The documents pertaining to ARE-1 No.1 reveals that the accused has filed the application on 29.05.2009 for inspection and necessary attestation in respect to shipment of goods under Invoice No.001/2009- 10 dated 23.05.2009 and examination report issued by the Inspector and Superintendent of Central Excise Department that total number of packages are 487 cartons and also issued certificate that they have opened and examined the packages of 5% of goods. These documents pertaining to the shipping bill No.2101235 dated 27.05.2009. In Export Invoice and packing list also it is mentioned that total 487 cartons and total 27624 pieces of Tshirts. As per certificate issued by the Central Excise Office, export invoice and packing list, the container number mentioned as TTNU 3469793. Form ARE-1 No.1 dated 29.05.2009 submitted by the accused to the Superintendent of Central Excise, wherein he declared the proposed export is under the duty drawback under Customs and Central Excise Duties Drawback Rules, 1995 and mentioned the particulars as under -
97 C.C.No. 33942/2011 No. & Gross Quantity Description Value
Descriptions of weight/net of Goods of Goods
packages weight
487 cartons Gross weight PCS 27624 100% Cotton 1,01,19,901/-
6105.00 Kgs Knitted Men's
Net weight Tshirts as per
5475.00 Kgs Invoice
001/2009-
10.
158. In Ex.P.7, sheet No.87 to 91 pertaining to ARE- 1 No.2. The documents pertaining to ARE-1 No.2 reveals that the accused has filed the application on 29.05.2009 for inspection and necessary attestation in respect to shipment of goods under Invoice No.002/2009-10 dated 23.05.2009 and examination report issued by the Inspector and Superintendent of Central Excise Department that total number of packages are 488 cartons and also issued certificate that they have opened and examined the packages of 5% of goods. These documents pertaining to the shipping bill No.2101554 dated 27.05.2009. In Export Invoice and packing list also it is mentioned that total 488 cartons and total 27576 pieces of Tshirts. As per certificate issued by the Central Excise Office, export invoice and packing list, the container number mentioned as TTNU 3871143. Form ARE-1 No.2 dated 29.05.2009 submitted by the accused to the Superintendent of Central Excise, wherein he declared the proposed export is under the duty drawback 98 C.C.No. 33942/2011 under Customs and Central Excise Duties Drawback Rules, 1995 and mentioned the particulars as under -
No. & Gross Quantity Description Value
Descriptions of weight/net of Goods of Goods
packages weight
488 cartons Gross weight PCS 27576 100% Cotton 1,01,22,404/-
5960.00 Kgs Knitted Men's
Net weight Tshirts as per
5325.00 Kgs Invoice
002/2009-
10.
159. The above documents shows that 5 % of the goods were examined by the Superintendent and Inspector of Central Excise department and they have issued certificate and examination report.
160. C.W.18 - Sri. Rajasekaran the then Superintendent of Customs, Tuticorin examined as P.W.15 and he deposed that the shipping bill No.2101235 dated 27.05.2009 and 2101554 dated 27.05.2009 in Ex.P.21 and the duty drawback scheme invoked by the exporter. Further, he states that when the consignment brought before him, he has to verify the documents which is brought by the shipping agency and after that he will scrutinize the documents and instruct the Inspector to make entries of the shipping bills in the EDI system and if the containers once properly sealed by the Central Excise Superintendent, then they have to do only the verification the marks and number of container and nature of seal 99 C.C.No. 33942/2011 present in the container and they will never physically verify the exports goods in the container.
161. In Ex.P.32 shipping bills also it is mentioned that, the consignments were not opened for physical examination by Customs. As per the above evidence of P.W.15 also, the Customs Officers never physically verify the exports goods in the container. Hence, after physical examination and sealing of the container by the officers of Central Excise department, the consignment will send to customs house for export, wherein the customs officers verify the documents and seal of the container only. Under such circumstances, this Court is of the view that, the accused has exported the 2 consignments to M/s Ankita Trading FZE, UAE under shipping bill No.2101235 and 2101554 both dated 27.05.2009 and claimed the duty drawback.
162. The next question would be whether the duty drawback has been sanctioned and credited to the drawback account of M/s Tirupati Exports in respect shipping bill No.2101235 dated 27.05.2009 ?
163. As per the prosecution case, duty drawback amount of Rs.8,56,344/- was sanctioned and credited to the duty drawback account of the M/s Tirupati Exports 100 C.C.No. 33942/2011 under scroll No.1810/2009, dated 09.06.2009 in respect to shipping bill No.2101235 dated 27.05.2009.
164. C.W.11 - Sri. M. Venkatesulu the then Superintendent of Customs (drawback) examined as P.W.8 and he deposed that as Superintendent of Customs in the drawback system his duties and responsibilities are to carryout the scrutiny of shipping bills and to sanction the drawback if the amount payable is less than Rs.1 lakh and if the drawback amount payable is more than Rs. 1 Lakh, then it will be sanction by the AC/DC drawback and after the release of duty of drawback, he required to monitor the realization of export proceeds within the prescribed time limit and to initiate recovery proceedings in case of default. Further he states that, the procedure in the processing and sanction of drawback of claims is that, after filing of shipping bill by the exporter which was assessed by the export assessment officer and subsequently examined by the examination officer by giving Let Export Order (LEO) and closure of EGM by the liners, in shipping bill will come to drawback menu in the Electronic Data Interchange (EDI) system for carrying out further scrutiny of sanction of drawback section and he will scrutinize the shipping bill details with invoice and other relevant documents with regard to different value of the item exported and classification drawback schedule 101 C.C.No. 33942/2011 and wherever sample is drawn for ascertaining the value or for ascertaining the description or for any purpose the outcome of the test report will be confirm and the bill will be sent to AC/DC of drawback for sanction if the drawback amount is more than of Rs.1 lakh and If the drawback amount is less than Rs.1 lakh, the drawback is sanctioned by the Superintendent (Drawback) and after sanction of the drawback in the system either by the DC/AC or the Superintendent drawback as the case may be the drawback amount will go the scroll menu for further transport and then the DC/AC will generate the scroll once in a week and it will be credited to the bank account of respective claimants mentioned in the shipping bill. Further he identified Ex.P.9 details of drawback, Ex.P.10 show cause notice issued to M/s Tirupati Exports and Ex.P.11 EDI screenshots. He further deposed that in Ex.P.11 M/s. Tirupati Exports name is reflected and they have claimed duty drawback amounts on various dates and also in the Ex.P.11 the shipping bill number, LEO date, EGM date, Scroll dates, Scroll number and etc are mentioned. He further states that, as per Ex.P.11, all the bill duty drawback amount were sanctioned and paid to M/s Tirupati Exports except one shipping bill and as per Ex.P.9 sanctioned amount is paid to exporter. In his cross examination, he states that Ex.P.9 and 11 are prepared by him on the basis of screenshots taken from the EDI 102 C.C.No. 33942/2011 system and he has not given certificate u/Sec.65 B of Indian Evidence Act.
165. Ex.P.9 is the details of duty drawback amount sanctioned to M/s Tirupati Exports Bangalore wherein Sl.No.13 in respect to shipping bill No.2101235 dated 27.05.2009, the drawback amount of Rs.8,56,344/- was sanctioned to M/s Tirupati Exports under scroll No.1810/2009 dated 09.06.2009. In this document, the P.W.8 given the details of drawback sanctioned to the M/s Tirupati Exports, Bangalore and it is signed by him. Ex.P.12 is the letter issued by the Deputy Commissioner (DBK) wherein he states that he furnished the details of drawback sanction to M/s Tirupati Exports Bangalore during the period 2008-09 and 2009-10 in the Annexure along with the screenshots of 14 shipping bills taken from EDI system. Hence, Ex.P.9 furnished by the Deputy Commissioner (drawback) who is the sanctioning authority. Ex.P.9 is not a computer generated copy which requires certificate u/Sec.65 B of Indian Evidence Act. As per the evidence of P.W.8, he prepared the Ex.P.9 on the basis of details available in EDI system.
166. Ex.P.11 is the attested copy of screenshots taken from the Indian Customs EDI System (ICES) in respect to 14 shipping bills pertaining to M/s Tirupati 103 C.C.No. 33942/2011 Exports. As per Ex.P.12 letter dated 12.07.2011, screenshots taken from EDI system. Hence, Ex.P.11 is a computer generated copy. Admittedly, no certificate u/Sec.65 B of Indian Evidence Act is furnished in respect to Ex.P.11.
167. In view of the Section 65 B of Indian Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document and if the conditions mentioned in the Section 65 B of Evidence Act are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original.
168. The Ld. Counsel for accused has relied upon the decision reported in (2014) 10 Supreme Court Cases 473 in between Anvar P.V. Vs. P.K. Basheer and Others wherein the Hon'ble Supreme Court has held that
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Electronic record produced for the inspection of the court is documentary evidence under Section 3 of the Evidence Act, 1872 (Evidence Act). Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 56-A, can be proved only in accordance with the procedure prescribed 104 C.C.No. 33942/2011 under Section 65B of the Evidence Act. The purpose of these provisions is to sanctify secondary evidence in electronic from generated by a computer. The very admissibility of electronic record which is called as computer output depends on the satisfaction of the 4 conditions prescribed under Section 65 B (2) of the Evidence Act.
Under Section 65 B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which should identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
The person concerned occupying the responsible official position concerned need 105 C.C.No. 33942/2011 only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., which contains the statement which is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45A of the Evidence Act - opinion of examiner of electronic evidence can be sought.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 dealing with evidence on computer records 106 C.C.No. 33942/2011 in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.
Proof of electronic record is a special provision introduced by the Information Technology Act 2000 amending various provisions under the Evidence Act. The very caption of Section 65 A of the Evidence Act read with Sections 59 and 65B thereof is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 of the Evidence Act has to yield. Generalia Specialibus non derogrant: the special law will always prevail over the general Law. Hence, Section 63 and 65 of the Evidence Act have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65 A and 65 B. An electronic record by way of secondary evidence shall not be admitted in the evidence unless the requirements under Section 65 -B are satisfied. Thus, in the case of CD, VCD, 107 C.C.No. 33942/2011 chip, etc., the same shall be accompanied by the certificate in terms of Section 65B of the Evidence Act obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
The appellant (election petitioner) admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice against the first respondent by using songs, announcements and speeches fall to the ground. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what is stated herein on the secondary evidence of 108 C.C.No. 33942/2011 electronic record with reference to Section 59, 65 A and 65 B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without the requirement of compliance of the conditions in Section 65B of the Evidence Act.
169. In view of above decision, electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice and the very admissibility of electronic record which is called as computer output depends on the satisfaction of the 4 conditions prescribed under Section 65 B (2) of the Evidence Act and the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India. It is further held that Section 63 and 65 of the Evidence Act have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65 A and 65 B. An electronic record by way of secondary evidence shall not be admitted in the evidence unless the requirements under Section 65 B are satisfied.
109 C.C.No. 33942/2011170. Instant case as discussed above, the prosecution has produced Ex.P.11 the electronic record without certificate u/Sec.65 B of Evidence Act and the said document marked subject to objection. Hence, in view of above decision, an electronic record by way of secondary evidence shall not be admitted in the evidence unless the requirements under Section 65 B of Indian Evidence Act are satisfied. Hence, the screenshots which were taken from the computers are produced and marked without production of certificate u/Sec.65 B of Evidence Act. Hence, the said electronic record i.e. Ex.P.11 shall not be admitted in the evidence by way of secondary evidence. Hence, the above decision is aptly applicable to the case on hand.
171. Ex.P.54 is the letter issued by the Additional Commissioner of Customs House, Tuticorin along with separate sheet showing the details of shipping bill number, date, FOB value, drawback amount sanctioned, scroll number and date and BRC etc. Further in the said letter it is stated that Men's T-shirts were exported in 14 shipping bills and the shipping bill number an date also mentioned in the said letter. In the separate sheet which was marked as Ex.P.54 A also sanction of duty drawback amount in respect to shipping bill No.2101235 mentioned. The Ld. Counsel for the accused objected to marking 110 C.C.No. 33942/2011 Ex.P.54 A as it is a computer generated copy and no certificate u/Sec.65 B of Indian Evidence Act is enclosed. It is pertinent to note that in Ex.P.54 it is clearly mentioned that he has enclosed in the separate sheet which showing all the details of shipping bill, date, duty drawback amount sanctioned etc. Hence, it is not computer generated copy, but it is a separate sheet enclosed along with the letter of the Additional Commissioner of Customs House in respect to details of duty drawback sanctioned to M/s Tirupati Exports, Bangalore. Hence, the certificate u/Sec.65 B of Indian Evidence Act is not required for the details given by the Addl. Commissioner, Custom House, Tuticorin. In the said letters it is clearly mentioned that drawback amount of Rs.8,56,344/- sanctioned in respect to shipping bill No.2101235 and duty drawback amount was withheld as per the instructions of DRI in respect to shipping bill No.2101554 dated 27.05.2009. Hence, this documents issued by the Additional Commissioner of Custom House, Tuticorin also reveals that drawback amount of Rs.8,56,344/- sanctioned in respect to shipping bill No.2101235.
172. In view of the above discussion, though Ex.P.11 screenshots taken from the Indian Customs EDI system is not admitted in the evidence by way of secondary 111 C.C.No. 33942/2011 evidence, but as per Ex.P.9 and 54 A the details of drawback sanctioned to M/s Tirupati Exports and Ex.P.12 and 54 letters issued by the concerned D.C. and A.C. of Customs House, Tuticorin (drawback) clearly shows that duty drawback amount of Rs.8,56,344/- sanctioned in respect to shipping bill No.2101235 and duty drawback amount was withheld as per the instructions of DRI in respect to shipping bill No.2101554 dated 27.05.2009.
173. C.W.32 - Sri. R. Mathi Selvan the then Chief Manager of Indian Overseas Bank, Tuticorin Main Branch examined as P.W.33 who deposed before the Court in respect to production of Ex.P.43 documents to the I.O. of CBI. Further, he states that as per Ex.P.43, the accused is the proprietor of M/s Tirupati Exports and the type of account is duty drawback account and in this account they allow only duty drawback amount from the Customs and duty drawback amount will be received from the Customs department to the account of customer and the duty drawback amount received from 30.04.2008 to 12.09.2009 is reflected in the statement of account and total duty drawback amount received in the said account for the said period is Rs.1,28,83,248/-.
174. The account statement of M/s Tirupati Exports maintained in Indian Overseas bank, Tuticorin Main 112 C.C.No. 33942/2011 Branch under account No.010002000017313 is produced and got marked under Ex.P.43 wherein shipping bill No.2101235 mentioned in the month of June 2009. Further it is mentioned that Rs.8,56,344/- was transferred to the account of duty drawback account of M/s Tirupati Exports and the said amount was credited to the said account. Further, the certificate u/Sec.2 A of Banker Books of Evidence Act furnished by the P.W.33 in respect of said account statement. This account statement clearly reveals that duty drawback amount of Rs.8,56,344/- in respect of shipping bill No.2101235 was credited to the duty drawback account of M/s Tirupati Exports. Further as per the evidence of P.W.33, the duty drawback amount will be received from the Customs department to the account of the customer and they will allow only duty drawback from the Customs department. It is pertinent to note that P.W.33 not all cross-examined by the Ld. Counsel for the accused to discredit his version. Hence, the evidence of P.W.33 and Ex.P.43 statement of accounts, clearly shows that duty drawback amount of Rs.8,56,344/- was credited to the duty drawback account of M/s Tirupati Exports maintained in Indian Overseas Bank, Tuticorin Branch in the month of June 2009. Hence, the prosecution has proved that duty drawback amount of Rs.8,56,344/- was credited to the duty drawback account of M/s Tirupati Exports in respect to 113 C.C.No. 33942/2011 shipping bill No.2101235 dated 27.05.2009. Further, the prosecution has proved that the accused being the proprietor of M/s Tirupati Exports has availed the duty drawback amount of Rs.8,56,344/- under the shipping bill No.2101235 dated 27.05.2009.
175. As per the prosecution case, a team of DRI, Bangalore led by Sri. M.R.Chandrashekhar, Sr. Intelligence Officer, Directorate of Revenue Intelligence intercepted, examined and seized 2 export consignments under invoice No.003/2009-10 and 004/2009-10 both dated 03.06.2009 before the examination of export goods could be undertaken by the officers of Central Excise and after verification of the export consignments by the DRI officials revealed that the actual number of packages and quantities were not tallying with the declaration made by M/s Tirupati Exports in ARE-I and invoices raised for the export and thereby, accused made false declaration of boxes and quantities by inflating it in order to get duty drawback from Government of India by fraudulent means.
176. As per prosecution case, after detection of the fraud committed by accused, two more containers bearing Nos.TTNU 346979 (3) and TTNU 387114 (3) of the earlier exports/shipments done by M/s Tirupati Exports covered under shipping bill No.2101554 dated 27.05.2009 and 114 C.C.No. 33942/2011 2101235 dated 27.05.2009 were recalled from Dubai via Tuticorin Port and were brought to the premises of M/s Tirupati Exports at No.27, Industrial Estate Chunchanaghatta Road, Konanakunte Post, Bangalore and the same were examined and seized by the team of DRI, Bangalore led by Sri. M.R. Chandrashekar, Sr. Intelligence Officer, Directorate of Revenue Intelligence on 27.06.2009. The DRI verification of the recalled export consignments revealed that the actual number of packages and quantities were not tallying with the declaration made by M/s Tirupati Exports in the export documents and that they were inflated. The total value declared for both the consignments was Rs.2,02,42,305/- .
177. Section 50 of the Customs Act, 1962 reads as under -
50. Entry of goods for exportation (1) The exporter of any goods shall make entry thereof by presenting electronically on the customs automated system to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in such form and manner as may be prescribed Provided that the Commissioner of Customs may, in case where it is not feasible to make entry by presenting electronically on the 115 C.C.No. 33942/2011 customs automated system, allow an entry to be presented in any other name (2) The exporter of any goods, while presenting a shipping bill or bill of export, shall make and subscribe to a declaration to the truth of its contents.
(3) The exporter who presents a shipping bill or bill of export under this section shall ensure the following, namely: -
(a) the accuracy and completeness of the information given therein;
(b) the authenticity and validity of any document supporting it; and
(c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force.
178. In view of the above provision of law, the exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill etc. The exporter of any goods, while presenting a shipping bill or bill of export, shall make and subscribe to a declaration as to the truth of its contents and the exporter who presents a shipping bill or bill of export under this section shall ensure the accuracy and completeness of the information given therein and the authenticity and validity of any document supporting it and compliance with the restriction or prohibition, if any, relating to the goods 116 C.C.No. 33942/2011 under this Act or under any other law for the time being in force.
179. Hence, in view of above of above provision, the exporter of the goods while presenting a shipping bill or bill of export shall make and subscribe to a declaration to the truth of its contents and ensure the accuracy and completeness of the information given therein and authenticity and validity of any document supporting it.
180. C.W.4/P.W.4 - M.D. Doraiswamy the then Dy. Commissioner of Central Excise deposed that in Ex.P.7 file there was a letter dated 29.05.2009 addressed to the Superintendent of Central Excise, Kanakapura Road Range -1, Bangalore for factory stuffing and after that, examination reports were issued by Smt. Jyothi, Superintendent of Central Excise and in the examination report, it is certified that the description of the goods, quantity and value are as per the particulars furnished in the export invoice. However, in none of the examination reports, the individual number of packages opened and examined is mentioned by the officials of Kanakapura Range -1. In his cross-examination he admits that he has not handled Ex.P.7 at any point of time. Based on Ex.P.7, he has deposed today before the Court. Hence, the P.W.4 has given evidence based on Ex.P.7 document.
117 C.C.No. 33942/2011181. Ex.P.7 file contains letters issued by the accused and Form ARE-1, examination report for factory sealed packages, containers, export invoices, packing list etc., wherein Sheet No.82 to 86 pertaining to invoice No.001 dated 23.05.2009, ARE-1 No.1 dated 29.05.2009 and the Sheet No.87 to 91 pertaining to invoice No.002 dated 23.05.2009, ARE-1 No.2 dated 29.05.2009.
182. The documents marked in Ex.P.7 in respect to invoice No.001, dated 23.05.2009 reveals that the accused who is authorized signatory of M/s Tirupati Exports wrote a letter to the Superintendent of Central Excise Kanakapura Road Range 1, Bangalore on 29.05.2009 and along with ARE-1 No.1 pertaining to shipment of goods under invoice No.001 dated 23.05.2009 and requested to depute the officers for inspection and attestation for factory stuffing. Further Form ARE-1 No.1 dated 29.05.2009 submitted by the accused wherein he mentioned the particulars of exporter of goods as M/s Tirupati Exports with Central Excise Registration No.ACVPJ9741NXM002 and stated that M/s Tirupati Exports propose to export the consignments to Ankita Trading, FZE, UAE under claim for Bond and number of descriptions of packages mentioned as 487 cartons and gross weight 6105.00 Kgs and Net weight 5475.00 Kgs and quantity of goods mentioned as 27624 pieces and 118 C.C.No. 33942/2011 description of the goods mentioned as 100% Cotton Knitted Men's T-shirts as per invoice No.001/09-10 and value of the said amount mentioned as Rs.1,01,19,901/-. Further, it is mentioned that non duty paid goods brought for export. Further he certified that the goods have been manufactured without availing facility of CENVAT credit under Rules 2001 and without availing facility, Notification No.41/2001 Central Excise dated 26.06.2001 issued under Rule 18 of Central Excise Rules 2001 and without availing facility under Notification No.43/2001 Central Exicse dated 26.06.2001 issued under Rule 19 of Central Excise Rules. Further, he declared that export is in discharge of the export obligation under claim of duty drawback under Customs and Central Excise Duties drawback Rules 1995. Back side of this Form ARE 1 No.1, the certification issued by the Superintendent and Inspector of Central Excise department that they have opened and examined 5% of packages and found that the particulars stated and the description given overleaf and the packing list correct and the packages have been stuffed in the container TTNU 3469793 lorry No.TN-09-E- 2759 with marks and the same been sealed with Central Excise seal No.40 and LINER's (OTL) No.36997. Further export invoice also signed by the accused by declaring that the invoice shows the actual price of the goods described and that all particulars are true and correct. Further, the 119 C.C.No. 33942/2011 container number, number of packages, descriptions of goods, quantity pieces, rate and amount also mentioned in the export invoice. Further, packing list also signed by the accused with declaration that the packing list described and that all the particulars are true and correct and also mentioned the container number, number of packages, descriptions of goods, quantity pieces, and number of cartons. Further, Vessel loading port mentioned as Tuticorin and final destination mentioned as Jebel Ali port UAE. Further examination report for factory sealed packages/containers issued by the Superintendent Smt. Jyothi S. Chitagupi and Inspector Sri. D. Raghuram of Central Excise and also accused signed wherein it is mentioned date of examination conducted on 29.05.2009 and number of cartons are 487. These documents pertaining to the shipping bill No.2101235 dated 27.05.2009.
183. The documents marked in Ex.P.7 in respect to invoice No.002, dated 23.05.2009 reveals that the accused who is authorized signatory of M/s Tirupati Exports wrote a letter to the Superintendent of Central Excise Kanakapura Road Range 1, Bangalore on 29.05.2009 and along with ARE-1 No.2 pertaining to shipment of goods under invoice No.002 dated 23.05.2009 and requested to depute the officers for inspection and attestation for 120 C.C.No. 33942/2011 factory stuffing. Further Form ARE-1 No.2 dated 29.05.2009 submitted by the accused wherein he mentioned the particulars of exporter of goods as M/s Tirupati Exports with Central Excise Registration No.ACVPJ9741NXM002 and stated that M/s Tirupati Exports propose to export the consignments to Ankita Trading, FZE, UAE under claim for Bond and number of descriptions of packages mentioned as 488 cartons and gross weight 5960.00 Kgs and Net weight 5325.00 Kgs and quantity of goods mentioned as 27576 pieces and description of the goods mentioned as 100% Cotton Knitted Men's T-shirts as per invoice No.002/09-10 and value of the said amount mentioned as Rs.1,01,22,404/-. Further, it is mentioned that non duty paid goods brought for export. Further he certified that the goods have been manufactured without availing facility of CENVAT credit under Rules 2001 and without availing facility, Notification No.41/2001 Central Excise dated 26.06.2001 issued under Rule 18 of Central Excise Rules 2001 and without availing facility under Notification No.43/2001 Central Excise dated 26.06.2001 issued under Rule 19 of Central Excise Rules. Further, he declared that export is in discharge of the export obligation under claim of duty drawback under Customs and Central Excise Duties drawback Rules 1995. Back side of this Form ARE 1 No.2, the certification issued by the Superintendent and 121 C.C.No. 33942/2011 Inspector of Central Excise department that they have opened and examined 5% of packages and found that the particulars stated and the description given overleaf and the packing list correct and the packages have been stuffed in the container TTNU 3871143 Lorry No.TAC- 6326 with marks and the same been sealed with Central Excise seal No.40 and LINER's (OTL) No.36985. Further export invoice also signed by the accused by declaring that the invoice shows the actual price of the goods described and that all particulars are true and correct. Further, the container number, number of packages, descriptions of goods, quantity pieces, rate and amount also mentioned in the export invoice. Further, packing list also signed by the accused with declaration that the packing list described and that all the particulars are true and correct and also mentioned the container number, number of packages, descriptions of goods, quantity pieces, and number of cartons. Further, Vessel loading port mentioned as Tuticorin and final destination mentioned as Jebel Ali port UAE. Further examination report for factory sealed packages/containers issued by the Superintendent Smt. Jyothi S. Chitagupi and Inspector Sri. D. Raghuram of Central Excise and also accused signed wherein it is mentioned date of examination conducted on 29.05.2009 and number of cartons are 488. These documents 122 C.C.No. 33942/2011 pertaining to the shipping bill No.2101554 dated 27.05.2009.
184. Hence, as per above said documents marked in Ex.P.7 clearly reveals that the accused has requested the Superintendent of Central Excise, Kanakapura Road Range 1, Bangalore for inspection and necessary attestation for shipment of the goods under invoice No.001 and 002 both dated 23.05.2009 pertaining to ARE-1 No.1 and 2 and the Superintendent and Inspector of Central Excise certified that they have examined 5% of goods packages in the container and sealed the containers.
185. Further, these documents clearly shows that the accused who is exporter, exported 100% cotton knitted men's Tshirts under duty drawback scheme by declaring number of cartons and number of pieces to be exported. Though, the P.W.4 and 5 Deputy Commissioners of Central Excise admitted in their cross examination that they are given evidence based on Ex.P.7 documents, but, these documents are not disputed by the accused that he has not exported the goods under shipping bills No.2101235 and 2101554 both dated 27.05.2009.
186. C.W.8 - Smt. Jothi Bas the then Manager and Authorized signatory in Mercantile Shipping Services, Tuticorin examined as P.W.6 who deposed that M/s 123 C.C.No. 33942/2011 Tirupati Exports, Bangalore was the customer of Mercantile Shipping Services and she used to get export documents such as export invoice and packing list of Titupati Exports pertaining to factory stuffed 100% cotton knitted men's T-shirts for export to Jabal Ali Port in U.A.E. and the said customer was exporting the said goods under duty drawback scheme and the goods were used to export from Tuticorin port and they used to file the documents pertaining to Titupati Exports in Export section of Tuticorin custom office through their staffs and the stuffed container was coming to the green gate of Tuticorin port from Bangalore and thereafter they file Equipment Interchange Receipt (EIR) issued by PSA - SICAL and thereafter the container will reach to examination centere, where their operation staff would collect sealed cover addressed to the AC of Customs, Tuticorin from the Central Excise Office and thereafter the container and the documents will be handed over to the customs authority and they will verify the Central Excise Seal and they verify the original shipping bills and thereafter, they have issued the Let Export Order (LEO) as well as 3 copies of shipping bills and thereafter their operation staff will approach the PSA- SICAL office and get it done the verification of documents issued by the customs office and after verification by PSA-SICAL the truck would unload the container into the vessel if it was available or in the PSA-
124 C.C.No. 33942/2011SICAL area if the vessel was not available. Further she identified Ex.P.8 letter in respect to 14 shipping bills pertaining to M/s Tirupati Exports. Further she states that through these shipping bills, M/s Tirupati Export exported 100 % cotton knitted Men's T-shirts to UAE and thereafter they have filed 2 shipping bills during the year June 2009, however, M/s Tirupati Exports did not send the cargo for export and later she came to know that, 2 containers were intercepted by the DRI officers. In the cross-examination she admits that accused never come to port area of Tuticorin in respect to export done by Mercantile Shipping Services for their goods.
187. It is pertinent to note that after physical examination of the consignments by the officers of Central Excise department at the premises of the exporter, the consignment loaded into the container and it was sealed by the officer of the Central Excise department and the certificate was also issued in this regard. Thereafter, the container will go to the port where the customs house agent submitted the documents. As per the evidence of P.W.6, they used to send the empty containers to M/s Tirupati Exports at Bangalore and they have done documentation in respect to export of the goods at Customs House, Tuticorin.
125 C.C.No. 33942/2011188. C.W.9 - Sri. Sinivasan the then manager of Express Clearing examined as P.W.7 who deposed that he was handling clearing and forwarding work to Mercantile Shipping Services and accused wanted to export factory stuffed 100% knitted men's T-shirts to Jabal Ali Port, in U.A.E. under duty drawback scheme and accused requested him to arrange the containers from the shipping lines and trucks from the transporters from Tuticorin and also requested to arrange customs clearance at Tuticorin port after arrival of Central Excise sealed containers and the accused has agreed to pay service charges and he used to arrange customs clearance through Mercantile Shipping Services of his factory sealed containers and the accused used to send the copies of export invoice and packing list through courier and he used to send the trucks with the empty container to the factory premises of accused at Bangalore and after getting the export goods, house stuffed by the Central Excise Officials the accused used to send export documents and examination report through truck driver and the trucks with the sealed container and sealed envelop would enter inside the green gate of Tuticorin port and after filing equipment Interchange Receipt issued by PSA-SICAL, the truck with sealed container would go to the examination centre in the port area and the customs officials would then opened the 126 C.C.No. 33942/2011 sealed cover, verified the documents and also check the Central Excise seal on the container and if everything was found correct and intact they would issue Let Export Order. Thereafter, the truck with the container would moved to port office and after completion of verification of documents, the truck would unload the container straight into the vessel.
189. P.W.7 further states that 14 containers of garments of M/s Tirupati Exports got cleared from the Tuticorin port through Mercantile Shipping Services and out of the same, 2 containers which are already sailed from the Tuticorin were called back on the instructions of DRI and sent to the factory premises of M/s Tirupati Exports.
190. In the cross-examination of P.W.7, he states that the Central Excise Officer has to examine the cargo in the container and in front of them they will put the seal to the container and thereafter the container reached to the port and the customs officer will examine the seal number and timing of the transportation and after satisfaction, they will allow for shipment and CHA will file the shipping bill in customs and move the container for stuffing. Further he admits that accused had never come to port area of Tuticorin in respect to export done by M/s Tirupati 127 C.C.No. 33942/2011 Exports. He further states that, once the sealed container reached the Tuticorin port, it will be in the custody of customs authority. Further he states that the DRI officer had requested to arrange transport of the containers to Bangalore and he arranged the same and inside of the terminal, no body can go. Further, he admits that he has not personally know the condition of the brought back containers. Further he states that once the documentation formalities and seal verification completed at Tuticorin port, then the containers directly go to the terminal and after it will be loaded in the ship. Further he states that as CHA his role is only to filing the shipping bills and verification of seal.
191. As per the evidence of P.W.6 and 7, the customs house agent used to do the documentation work at the Customs house and clearing the consignments which were sealed in the containers by the Cental Excise offices in the presence of exporter at factory premises.
192. The Ld. Counsel for the accused argued that the accused exported the consignments through Customs House Agent and he never visited the port area at Tuticorin. Both P.W.6 and 7 admitted in their cross- examination that accused never come to the port area of Tuticorin in respect to export done by him. As per 128 C.C.No. 33942/2011 discussion made above, the Central Excise Officers examined the consignments on the basis of request letters issued by the accused and consignments loaded into the empty containers at factory premises in the presence of exporter and it was sealed by the Central Excise Officers and the sealed containers sent to the port area for export and after verification of documents submitted by the Customs House Agent and verification of seal on the sealed containers by the Customs officers, the containers loaded into the vessel if it was available or in the PSA-SICAL area if the vessel was not available. It is pertinent to note that, the Customs officers specifically deposed in their evidence that, they will never physically verify the export goods in the sealed container at Customs House, Tuticorin and after verification of seal and documents, they will put One Time Lock on the containers and issue LET export order. Hence, the presence of the exporter at port area is also not necessary as only verification seal and documents done at Customs House. Hence, there is no substance in the contention of the Ld. Counsel for the accused.
193. As per the prosecution case, after the detection of the fraud committed by accused two more containers bearing Nos.TTNU 346979 (3) and TTNU 387114 (3) of the earlier exports/shipments done by M/s Tirupati Exports 129 C.C.No. 33942/2011 covered under shipping bill No.2101554 dated 27.05.2009 and 2101235 dated 27.05.2009 were recalled from Dubai via Tuticorin Port and were brought to the premises of M/s Tirupati Exports at No.27, Industrial Estate Chunchanaghatta Road, Konanakunte Post, Bangalore and the same were examined and seized by the team of DRI, Bangalore led by Sri. M.R. Chandrashekar, Sr. Intelligence Officer, Directorate of Revenue intelligence on 27.06.2009.
194. As discussed above, P.W.7 in his evidence specifically states that 14 containers of garments of M/s Tirupati Exports got cleared from the Tuticorin port through Mercantile Shipping Services and out of the same, 2 containers which are already sailed from the Tuticorin were called back on the instructions of DRI and sent to the factory premises of M/s Tirupati Exports.
195. C.W.36 - Sri. M.R. Chandrashekar the then Sr. Intelligence Officer, DRI, Bangalore examined as P.W.29 and he deposed that he received instructions from the Asst. Director of DRI, Bangalore on 26.07.2009 that two containers previously exported which have been recalled from Dubai via Tuticorin port has reached the premises of M/s Tirupati Exports and the same needs to be examined and accordingly, he himself along with the Intelligence 130 C.C.No. 33942/2011 Officers namely Sri. B.L.Narayana, M.S. Rani, Sri. Prakash Dage and Mr. Villa Sujeer and two independent witnesses went near the premises of M/s Tirupati Exports and found two containers which were loaded on two trucks. Further, the accused, Ms. Jyothi Chitgupi, Sri. D.Raghuram, Inspector, M. Sampath Kumar, Inspector were also present at the premises of M/s Tirupati Exports and all of them verified the Central Excise lead seal number which was affixed on the lock of the container and the One Time Seal and found that the seals were intact and after informing the accused, the locks were broke opened and the cartons were unloaded one by one and kept in the godown of M/s Tirupati Exports for further examination.
196. P.W.29 further states that during the examination, documents in respect of these two containers were also opened and verified with reference to the goods present in the containers and upon verification of the first container it was found that, there were 250 cartons, out of the total around 480 cartons declared in the export documents and out of 250 cartons, about 110 cartons were found empty and these cartons were opened one by one and the contents were verified and found that there were T-shirts of various sizes and colours and the details of each cartons were listed as per Annexure-I and the total 131 C.C.No. 33942/2011 number of T-shirts declared were much more than what was actually present in the cartons. There was mis declaration of quantity.
197. P.W.29 further states that the cartons of the second container were verified and found that there were about 250 cartons out of around 485 cartons declared in the export documents and out of 250 cartons, around 105 cartons found empty and the contents of the all the cartons were examined and found that the number of T- shirts which were available in export goods were much less than what was declared in the export documents and the list of the cartons along with the contents has been prepared as Annexure-II to the mahazar and further the said goods were handed over to the accused through a Supratnama for safe custody on 27.06.2009. He further states that the mahazar was prepared by M.S Rani, I.O and the Annexure-I was prepared by him and Annexure-II was prepared by Sri. B.L. Narayana, I.O and he signed on the mahazar, Annexure-I and Annexure-II and he identified Ex.P.24 the true copy of the mahazar, annexure- I, annexure-II and Ex.P.42 Supratnama.
198. P.W.29 was subjected to cross-examination by the Ld. Counsel for the accused wherein he states that Ex.P.24 is a xerox copy signed by Sri. B.G. Nandakumar 132 C.C.No. 33942/2011 and as per Ex.P-24, two consignments allegedly exported on 27.05.2009 with the assistance of CHA and the two consignment shipping bill No. 2101235 and 2101554 dated 27.05.2009 were physically examined by the Superintendent and Inspector of Central Excise. Further he admits that, after due examination, these two consignments were exported and after one month of export, these two consignments brought back from Dubai to Tuticorin Port and these two consignments dealt by various officers at various places and thereafter it has been cleared. He further states that he has not aware about the the loading and unloading of the above said two consignments at Dubai Port. Further he states that he has seen all the edges of the container, but it is not written in the mahazar. Further he states that he has not written in the mahazar about who have unloaded the materials from the container. Further he states that the staff provided by the exporter were done the unloading work and he has not taken signatures of the said workers. Further, he states that annexures have been prepared by the officers who have verified the boxes in his presence. Further, he states that the boxes have been examined one by one on the same day since 10.00 a.m. to 6.00 p.m. Further he states that he has seen and verified the OTL affixed on the container with the documents and found tallied and the same has been verified by the officer who have sealed the 133 C.C.No. 33942/2011 containers. Further he admits that he has not personally counted the materials available in each boxes.
199. In view of the evidence of P.W.29, as per instruction of Asst. Director of DRI. two containers previously exported which have been recalled from Dubai via Tuticorin port and the said containers reached the premises of M/s Tirupati Exports and he himself and other Intelligence Officer of DRI and two independent witnesses went to the premises of M/s Tirupati Exports on 27.06.2009 along with the Central Excise officers and they have verified the Central Excise LEAD seal which was affixed on the lock of the container and OTL and found that seals were intact and after informing the accused, the locks were broke opened and the cartons were unloaded one by one and kept in the godown of M/s Tirupati Exports and the documents in respect to two containers were opened and verified with reference to the goods present in the containers. Upon verification of the first container, they found 250 cartons, out of the total around 480 cartons declared in the export documents and out of 250 cartons, about 110 cartons were found empty. These cartons were opened one by one and the contents were verified and found that there were T-shirts of various sizes and colours and the details of each cartons were listed as per Annexure-I. Further he specifically states that the 134 C.C.No. 33942/2011 total number of T-shirts declared were much more than what was actually present in the cartons and there was mis declaration of quantity.
200. As per evidence of P.W.29, the cartons of the second container were verified and found that there were about 250 cartons out of around 485 cartons declared in the export documents and out of 250 cartons, around 105 cartons found empty. The contents of the all the cartons were examined and found that the number of T-shirts which were available in export goods were much less than what was declared in the export documents. Hence, as per evidence of P.W.29 there is a mis-declaration of quantity of the goods and also cartons. Further, P.W.29 specifically states that he has verified the Central Excise lead seal number and OTL affixed on the container with the documents and found tallied and same has been verified by the officers who have sealed the containers. Hence, nothing has been elicited in the cross examination of P.W.29 to discredit his version.
201. Further, C.W.40 - Smt. M.S. Rani the then Intelligence Officer, DRI Bangalore examined as P.W.24 and she deposed before the Court that on 27.06.2009 she received instruction from the Asst. Director Sri. Datta Kumar to accompany to the group headed by Sri. M.R. 135 C.C.No. 33942/2011 Chandrashekar and their group includes Mr. Vittal Sujeer, Mr. Prakash Dage, Sri. B.N. Narayana and two independent witnesses. Further, she states that after constitution of the team, they assembled at M/s Tirupati Exports, Chunchanagatta road, Yelachenahalli, Bengaluru and after reaching there, they saw two containers and they were told that these two containers were brought back from Dubai through Tuticorin port and Central Excise officials of Kanakapura range namely Smt. Jyothi , Inspectors Mr. Rahugram and Sampath Kumar were also present along with accused Sri. Milap Jain in the M/s Tirupati Exports premises. She further states that then, they were directed to check the contents of both the containers and before doing s,o the Customs OTL and Central Excise seals were checked and found intact and later, they asked to break open both the containers and check the contents in each container and in container No. 1, shipping bill No. 2101235 dated 27.05.2009 the carton boxes in the container were unloaded and arranged separately in the godown of M/s Tirupati Exports and in container No. 1 there were total 487 boxes declared in the shipping bill and they have found only 239 boxes in the said container and they have opened all 239 boxes/cartons out of which 107 were empty, 30 boxes/cartons were without any cover, balance boxes/cartons covered with HDPE sacks.
136 C.C.No. 33942/2011202. P.W.24 further states that thereafter, they have opened the container No.2, shipping bill No. 2101554 dated 27.05.2009 and they found total packages declared is 488 boxes/cartons whereas they found only 250 boxes/cartons and they have opened all the 250 boxes/cartons out of that, 30 boxes were without any covering apart from that 111 boxes were empty and thereafter, all the boxes arranged in the godown of M/s Tirupati Exports and on verification, it was further found that, all the boxes/cartons were not assigned with any serial number or markings pertaining to M/s Tirupati Exports and all the boxes/cartons were used and contained different markings of various companies. She further states that on inquiry accused informed that, he has not declared any markings in the export documents and that he has not marked the boxes with any serial number and also that the printed markings of various companies does not denote the suppliers or buyers name and addresses since they are used ones and on details verification of both the containers the report was prepared and particularly, some of the exporters are fraudulently availing duty draw back claim from the Government of India by making fraudulent exports and all the shipping bills should be tallied with the contents of the container which they are exporting and on verification of the exports documents namely Invoice, Shipping bills and they will 137 C.C.No. 33942/2011 verify the shipping bills and containers and during every exports they are supposed to verify the documents along with the containers and number of the packages should tallied with the number of packages mentioned in the shipping bills and in this case, as per their verification, the number of packages and quantity declared did not tally with the contents of the containers and she has seen that the accused also signed the Ex.P-24. Further, she identified the accused who present before the Court.
203. P.W.24 further states that since the description and quantity were not matching with the contents of the containers with the Export documents, which is in contravention of the provisions of the Customs Act, the SIO intended to seize the goods which are liable for seizure and for the sake of investigation, he required to draw two representative samples from each of the containers and accordingly, two representative samples of each of the goods which has been sealed in cloth covers individually for which the witnesses and accused have signed and thereafter, the SIO seized the said goods under a Mahazar and that contents of the two containers were listed in Annexure 1 and 2 and the Annexure -1 was written by one Mr. B.L Narayana, I.O, DRI and Annexure-2 was written by one Mr. M.R. Chandrashekar, SIO, DRI. Further she states that since the seized goods could not be shifted, the 138 C.C.No. 33942/2011 SIO handed over the same to the accused under "Supratnama" for safe custody for which he was agreed with a instruction not to remove sale, dispose, tamper, rent, deal in any manner whatsoever without the prior permission from the DRI or any competent authority in writing and further, in SIO took the lead seal and OTL seal of both the containers and put the same into cloth covers and sealed the same then the contents of the goods were loaded in the business premises of the accused and sealed and the witnesses affixed their dated signatures on the same along with accused. Further, she identified Ex.P.24 attested copy of Mahazar.
204. P.W.24 subjected to cross-examination by the Ld. Counsel for the accused wherein she admits that Central Excise department and Customs department and DRI officer are interlinked to with each other. Further she admits that she was aware of the physical examination done by the Central Excise before exporting the materials in respect to M/s Tirupati Exports. Further she admits that these two consignments were exported with the assistance of Customs House Agent. Further she states that she has not investigated the case, but she assisted the SIO and DRI Team and her role in this entire case is only to drawing of Ex.P.24 mahazar. Further she admits that these two consignments were reached Jabel Ali port at 139 C.C.No. 33942/2011 Dubai as per records. P.W.24 denied that these two consignments were unloaded in Jabel Ali port in Dubai. Further, he admits that she was not aware about the conditions of two containers when it reached to Tuticorin port from Dubai and after one month from the date of export, the mahazar has been drawn. When it is suggested that it is not possible for the independent witness to identify the physical examination of all the boxes in the two containers, then she replied that witnesses are meant for the witnessing the proceedings only. Further she admits that she does not know how many T-shirts were there in each boxes. Further she admits that after the seizure of materials in the containers, the same were not taken to their custody or produced before the Court. It is pertinent to not that as per the evidence on record, the materials which were seized under mahazar were handed over to the accused under Superathnama. Further she admits that the independent witness only can say abougt the examination of the containers and boxes and no independent witness were present except Smt. Aruna and Sri. Shivakumar and all other officers are DRI officers and Central Excise officers. These suggestions made to P.W.24 clearly shows that the accused indirectly admitted the presence of P.W.32 Aruna and another panch witness by name Shivakumar at the time of drawing of mahazar. Further, P.W.24 admits that she has been been told to 140 C.C.No. 33942/2011 write mahazar and not aware about the examination of all the materials.
205. As per the evidence of P.W.24, she wrote the mahazar Ex.P.24 on 27.06.2009 at the time of examination of 2 containers in respect to shipping bill No.2101554 and 2101235 dated 27.05.2009. Admittedly, there are minor discrepancies in the evidence of P.W.24 as they have conducted mahazar on 27.06.2009 and she has given evidence before the Court on 30.07.2024 after lapse of 15 years. Hence, minor discrepancies bound to occur. Further, P.W.24 evidence clearly reveals that there is mis- declaration of cartons/boxes and quantity of the goods in two containers which were brought back from the Dubai. Further, as observed above, the Ld. Counsel for accused was suggested that no independent witnesses were present except Smt. Aruna and Shivakumar. It shows that presence of independent witness at the time of conducting mahazar indirectly admitted by the accused.
206. C.W.39 - Sri. B.L. Narayana the then Intelligence Officer of DRI, Bangalore examined as P.W.30 and he deposed that he has prepared Annxure II to the mahazar Ex.P.24 at the factory premises of M/s Tirupati Exports on 27.06.2009 and he has mentioned Sl.No.1 to 141 C.C.No. 33942/2011 107 in Annexure II as the said boxes were found empty and Sl.No.108 to 239 were filled with old used T-shirts.
207. P.W.30 was subjected to cross-examination by the Ld.counsel for the accused wherein he states that he was also one of the team member of DRI officer in conducting the search. Further he states that his role only restricted to preparation of Annexure-II. Further he states that when they entered, the container was loaded and it was unloaded in his presence by the workers of the exporter and CHA boys have unloaded the materials in the container. Further he states that he has verified each boxes personally and he wrote it roughly and thereafter preferred the Annexure II. Further he admitted the suggestion made by the Ld. Counsel for the accused that other officers also verified the materials in the another container at the same time and DRI officers were verifying the materials in difference places at the same premises of M/s Tirupati Exports. These suggestions made by the Ld. Counsel for the accused clearly shows that the materials were verified in the two containers at the premises of M/s Tirupati Exports by the DRI Officers. Hence, the verification of materials in containers is indirectly admitted by the accused. Further P.W.30 states that he personally verified the boxes and written the Annexure - II. Hence, as per the evidence of P.W.30, he personally verified each 142 C.C.No. 33942/2011 boxes and prepared the Annexure -II. Hence, as per the evidence of P.W.24, 29 and 30, the mahazar has drawn on 27.06.2009 at the premises of M/s Tirupati Exports Chunchaghatta Road, Yelechanahlli, Konanakunte Post, Bangalore in respect to two containers under shipping bills No.2101554 and 2101235 both dated 27.05.2009 and they found mis-declaration of quantity.
208. C.W.45 - Smt. Aruna U.R. examined as P.W.32 and she identified her signature on Ex.P.24 - attested copy of Mahazar and Ex.P.31 - attested copy of Supratnama and deposed that the officers who came for enquiry in the godown of M/s Tirupati Exports have requested her to sign on the documents and she put her signatures on the said documents.
209. P.W.32 cross-examined by the Ld. Counsel for the accused wherein she states that she does not who is the owner of the M/s Tirupati Exports and she is not aware of the contents of Ex.P.24 and 31. Further she admits the suggestion that 4-5 DRI officers came near to M/s Tirupati Exports and took her signatures and she does not know about what happened in the premises of M/s Tirupati Exports. Further she admits that DRI officer Mr. Eshaq told her to depose before the Court as per the direction of CBI and she told Mr. Eshaq that she will say 143 C.C.No. 33942/2011 truth before the Court and put her signature on the documents due to pressure of DRI officers. Further she admits that she has not gone to the premises of M/s Tirupati Exports and DRI officers took her signatures on the road. Further she admits that DRI officer present at the time of taking her signature on the documents and she does not know the English language and she is unable to read and write English and the contents of Ex.P.24 and 31 were not read over to her and she has not dictated the contents of the documents.
210. In the cross examination of P.W.32, she admits the suggestions made by the Ld. Counsel for accused that she does not know the contents of Ex.P.24 mahazar and Ex.P.31 and she does not remember when she signed the documents. It is pertinent to note that, Ex.P.24 mahazar drawn on 27.06.2009 and P.W.32 examined before the Court on 08.01.2025 after lapse of more than 15 years. P.W.32 is doing house keeping work and it cannot be expected from her to depose the contents of the mahazar after lapse of more than 15 years. It is pertinent to note that P.W.32 in her evidence specifically states that, the officers who came for inquiry in the godown of M/s Tirupati Exports have requested her to sign on the documents and she put her signature. Further in cross examination also she admitted the suggestions made by 144 C.C.No. 33942/2011 the Ld. Counsel for the accused that 4-5 DRI Officer came near to M/s Tirupati Exports and took her signature. It shows that, the presence of the P.W.32 near M/s Tirupati Exports at the time of inquiry by the DRI Officers is indirectly admitted by the accused. Further she specifically states that she told Mr. Eshaq that she will say truth before the Court. It shows that, the DRI Officers visited the godown of M/s Tirupati Exports and after inquiry, they took signature of P.W.32 independent witness.
211. Ex.P.29 is the letter dated 15.12.2010 along with annexure enclosing the list of documents written by the Deputy Director of DRI, Bangalore to CBI. In this letter, it is stated that he is forwarding the attested photostat copies of the documents in respect to investigation of the case in RC 17(A)/2010 of CBI, ACB, Bangalore and original documents are required in the adjudication proceedings/other proceedings in the case. Further in annexure at Sl.No.4, the mahazar drawn on 27.06.2009 at Tirupati Exports, No.27, Industrial Estate, Chunchanaghatta Road, Konanakunte Post, Bangalore for the seizure of the Men's Cotton T'shirts and empty cartons along with annexure No.1 and 2 and Supratnama was forwarded to the CBI. Hence, as per this document, 145 C.C.No. 33942/2011 Ex.P.24 and 31 are the attested copies of the original documents.
212. Ex.P.24 is the attested copy of the mahazar dated 27.06.2009 along with annexure No.1 and 2 and the said document is attested by the Sri.B.G. Nandakumar, Sr. Intelligence Officer, DRI, Bangalore.
213. Ex.P.24 attested copy of the mahazar reveals that, the mahazar drawn on 27.06.2009 in between 10.00 a.m. to 6.00 p.m. at M/s Tirupati Exports, No.27, Industrial Estate, Chunchanaghatta Road, Konanakunte Post, Bangalore and P.W.24 M.S. Rani signed the mahazar as it was written by her and P.W.29 M.R. Chandrashekhar signed the mahazar as it was drawn before him and Sri. Shivakumar and Smt. Aruna U.R. have put their signatures on each page of the mahazar and annexures. Further, Ex.P.24 reveals that Smt. Jyothi Superintendent KPR-I, Range signed the mahazar by endorsing that she verified the OTL and lead seal (Central Excise Seal) of both the containers and found intact and she was present during the mahazar proceedings. Further, Sri. D. Raghuram Inspector of Central Excise and Sri. Sampathkumar Inspector of Central Excise were put their signatures on the Ex.P.24 mahazar. Further, Sri. M.R. Chandrashekar signed the annexure 1 as it was prepared 146 C.C.No. 33942/2011 by him and before him and Sri. B.L. Narayana has signed the annexure II as it was prepared by him and M.R. Chandrashekar signed the Annexure II as it was prepared before him. Further, the accused signed the each page of the Ex.P.24 mahazar and Annexure I and II by stating that he was present during the mahazar proceedings and also signed that he received the copy.
214. In Ex.P.24 mahazar it is specifically mentioned that the S.I.O. showed container No.TTNU 387114 (3) loaded on truck No.TN-69/L2641 and locked with OTL No.SCIB 36985 and Central Excise lead seal No.44 and container number TTNU 346979 (3) loaded on truck No.TN-69/M7813 and locked with OTL No.SCI B 36997 and Central Excise lead seal No.44 and they are all see that the OTL seals and the Central Excise lead seals are intact and the same were broken by the respective drivers on the instruction of S.I.O. As discussed above, the Superintendent of Central Excise has endorsed on the mahazar that she verified the OTL and lead seal (Central Excise Seal) of both the containers and found intact and she was present during the mahazar proceedings. Hence, as per the endorsement made by the Superintendent of Central Excise and also averments of the mahazar, the OTL seals and Central Excise lead seals are intact. Further, the P.W.29 Sri. M.R. Chandrashekar S.I.O also 147 C.C.No. 33942/2011 specifically states that all of them verified the Central Excise lead seal No.44 which was affixed on the container and One Time Seal and found that the seals were intact and after informing the accused, the locks were broke opened. Further, P.W.24 - Smt. M.S. Rani Intelligence Officer also deposed that before checking the contents of the both containers, the Customs OTL and Central Excise seals were checked and found intact. The evidence of P.W.24 and P.W.29 and also the contents of the Ex.P.24 mahazar clearly shows that the persons who are participated in the mahazar have seen the OTL seals and Central Excise Lead seals and found that the same are intact before checking the contents of the containers.
215. Ex.P.31 is the attested copy of Supartnama dated 27.06.2009 it reveals that the accused undertake to keep the seized goods mentioned Annexure I and II attached to the mahazar dated 27.06.2009 in his safe custody and he shall not move or remove, transfer, lease, sell, dispose, tamper, part with or in any manner otherwise deal with the seized goods without the order from the competent authority or DRI, Bangalore. The said document is signed by the accused and the independent witnesses by name Sri. Shivakumar and Smt. Aruna U.R. 148 C.C.No. 33942/2011
216. Admittedly, both containers sent to Jabel Ali Port UAE from Tuticorin Port and Let export order issued on 30.05.2009. P.W.7 Sri. Srinivasan deposed in his evidence that on the direction of DRI officers, 2 other factory stuffed containers which are already sailed from Tuticorin port were called back from the destination and sent to the factory premises of M/s Tirupati Exports. Further, these 2 containers called back on the directions of DRI. In the cross examination of P.W.7 - Sri. Srinivasan, he states that if the container go directly to vessel/ship from Tuticorin to Dubai, then it will take 5-6 days and if it was sent via Colombo, it will take 12-15 days. Further, P.W.7 admitted that once the sealed container reaches the Tuticorin port, it will be in the custody of Customs Authority. Further, P.W.7 states that once the documentation formalities and seal verification completed at Tuticorin Port, then the containers directly go to the terminal and thereafter it will be loaded in the ship. There is nothing elicited in the cross examination of the prosecution witnesses that the goods in the sealed containers were unloaded at UAE. Further, there is no evidence on record to show that the goods in the sealed containers were unloaded at UAE.
217. Further, as per Ex.P.24 mahazar, the carton boxes in both containers were unloaded and arranged 149 C.C.No. 33942/2011 separately in the godown of the M/s Tirupati Exports and on verification, it was found that the container number TTNU 346979 (3) contained 239 cartons, out of which 107 are empty against 487 cartons declared in the export invoice number 001/2009-10 dated 23.05.2009 under shipping bill No.2101235 dated 27.05.2009. Further, Ex.P.24 mahazar reveals that on detailed verification of the said container, it was found that out of 239 boxes, 102 boxes were covered with HDPE sacks and 30 boxes were without any covering and the details of T-shirts contained in the said container are mentioned in Annexure-II. Further, the contents of the boxes in the said container is mentioned in Annexure -II. Further, it is stated in the mahazar that, the number of pieces declared in the documents are 27624 and out of the same, 3138 pieces were found in the said container. As discussed above, as per Ex.P.7 Export Invoice and packing list in respect to invoice No.001/2009-10 dated 23.05.2009, the accused declared the number of cartons are 487 and number of pieces 27624. But, as per Ex.P.24 mahazar, the container number TTNU 346979 (3) contained 239 cartons, out of which 107 boxes are empty and only 3138 number of pieces were found. Hence, the documents produced by the prosecution and also evidence of the P.W.24, 29 and 30 clearly shows that the accused has mis-declared or false declared the quantity i.e. number of cartons and number 150 C.C.No. 33942/2011 pieces in the export documents in respect to shipping bill No.2101235 dated 27.05.2009.
218. Further, as per Ex.P.24 mahazar, the carton boxes in both containers were unloaded and arranged separately in the godown of the M/s Tirupati Exports and on verification, it was found that the container number TTNU 387114 (3) contained 250 boxes, out of which 111 boxes are empty against 488 cartons declared in the export invoice number 002/2009-10 dated 23.05.2009 under shipping bill No.2101554 dated 27.05.2009. Further, Ex.P.24 mahazar reveals that on detailed verification of the said container it was found that out of 250 boxes, 109 boxes were covered with HDPE sacks and 30 boxes were without any covering apart from the 111 empty boxes and the details of Tshirts contained in the said container are mentioned in Annexure-I. Further, the contents of the boxes in the said container is mentioned in Annexure -I. Further, it is stated in the mahazar that, the number of pieces declared in the documents are 27576 and out of the same 3280 pieces were found in the said container. As discussed above, as per Ex.P.7 Export Invoice and packing list in respect to invoice No.002/2009- 10 dated 23.05.2009, the accused declared the number of cartons are 488 and number of pieces 27576. But, as per Ex.P.24 mahazar, the container number TTNU 387114 (3) 151 C.C.No. 33942/2011 contained 250 boxes, out of which 111 boxes are empty and only 3280 number of pieces were found. Hence, the documents produced by the prosecution and also evidence of the P.W.24, 29 and 30 clearly shows that the accused has mis-declared or false declared the quantity i.e. number of cartons and number pieces in the export documents in respect to shipping bill No.2101554 dated 27.05.2009.
219. The Ld. Counsel for accused argued that, the mahazar dated 27.06.2005 has not been proved by the prosecution as P.W.32 independent panch witness not supported the case of the prosecution. As discussed above, Ex.P.24 mahazar drawn on 27.06.2009 and P.W.32 examined before the Court on 08.01.2025 after lapse of more than 15 years. Hence, there are more than 15 years difference in conducting Ex.P.24 mahazar and recording the evidence of P.W.32. Hence, minor contradictions is bound to be occurred. Though, the P.W.32 unable to state the contents of the mahazar, but the evidence of P.W.32 shows that, the DRI Officers visited the godown of M/s Tirupati Exports and after inquiry, they took signature of P.W.32 independent panch witness. Of course, there are some minor discrepancies in the evidence of prosecution witnesses. But it is the duty of the Court to separate chaff from grain. Therefore, testimony of P.W.24, 29 and 30 is cogent, clinching and reliable. Nothing has been elicited in 152 C.C.No. 33942/2011 the cross examination of the P.W.24, 29 and 30 to discredit their evidence. Though, P.W.24, 29 and 30 are DRI Officers, but nothing has been placed before the Court to disbelieve their evidence.
220. In the decision reported in (2021) 18 SCC 245 in between Gorusu Nagaraju Vs. State of Andhra Pradesh wherein the Hon'ble Supreme Court of India held that - B. Criminal Trial - Appreciation of Evidence - Contradictions, inconsistencies, exaggerations or embellishments - Minor contradictions or inconsistencies immaterial - Held, cannot affect material evidence - It is a well-settled principle of criminal law that some minor contradiction or inconsistency in evidence cannot affect material evidence and such contradiction or inconsistency cannot be made the basis to discard the whole evidence as unreliable.
221. In view of the above decision, some minor contradiction or inconsistency in evidence cannot affect material evidence and such contradiction or inconsistency cannot be made the basis to discard the whole evidence as unreliable. Instant case also there is some minor contradiction in the prosecution evidence, which cannot affect the material evidence.
153 C.C.No. 33942/2011222. The Ld. Counsel for the accused has relied upon the decision reported in 2005 SCC Online AP 1121 in between Suruvu Parshaiah Vs. State of A.P. wherein Hon'ble High Court of Andhra Pradesh has held that - "I have come across several cases where the contents of panchanama were not brought on record and simply panchanamas were marked and in some cases Courts also placed reliance on such panchanamas. The trial Courts also must realize that mere marking of panchanama is not sufficient and that the contents of panchanama shall be spoken to by the witnesses in the presence of the accused to enable him to cross-examine and then only the Court can place reliance on the contents of panchanama. Therefore, the Courts must exhibit patience to record the contents of the panchnama on which the prosecution proposes to rely to prove the relevant circumstances required to establish the guilt of the accused".
223. In view of above decision, mere marking of panchanama is not sufficient and that the contents of panchanama shall be spoken to by the witnesses in the presence of the accused to enable him to cross-examine and then only the Court can place reliance on the contents of panchanama. In the instant case, the contents of the Ex.P.24 mahazar spoken by the P.W.24, 29 and 30 in their 154 C.C.No. 33942/2011 evidence. In the above decision, panchnama has been marked in respect to accident case and contents of the panchnama was not spoken by the witnesses. Hence, facts of the above decision and facts of the case on hand are different and the above decision is not applicable to the case on hand.
224. The Ld. Counsel for the accused has relied upon the decision reported in (2014) 5 Supreme Court Cases 389, in between Radhey Shyam Vs. State of Rajasthan wherein Hon'ble Supreme Court has held - " 28. We are of the opinion that the prosecution has suppressed the genesis of the case. The incident does not appear to have happened in the manner in which the prosecution wants the Court to believe it had happened. The police came to the scene after about one hour. As to what happened in between is anybody's guess. The story of alleged dying declaration of Rajkanta is not established. The discovery of blade from the almirah is not established and has rightly been rejected by the trial Court. The panch witness turned hostile. Resultantly, the recoveries are not established. PW13 Vimala, the wife of the appellant, categorically stated that the appellant loved his children and he was a normal person. His conduct prior to the incident does not suggest guilty mind. He fed his children jalebi and kachodi. He ordred tablets for Rakesh because he had 155 C.C.No. 33942/2011 high fever. The injuries suffered by the children are so grave that the children would have raised cries. Nobody has stated that they heard any cries. The story that the child witness saw the incident through the hole is difficult to digest. No independent witness has been examined and the evidence of all the witnesses is replete with inconsistencies. All these circumstances make the prosecution story doubtful".
225. In view of above decision, no independent witness has been examined and the evidence of all the witnesses is replete with inconsistencies. In the instant case, P.W.32 is the independent witness whose presence mahazar has been drawn and she has examined before the Court and the evidence of P.W.24, 29 and 30 is consistency and reliable one. Hence, facts of the above decision and facts of the case on hand are different and the above decision is not applicable to the case on hand.
226. The Ld. Counsel for the accused has relied upon the decision reported in Crl. A.No.211/1951, in between State Vs. Simon Kaitan Fernadez, wherein Hon'ble High Court of Bombay held that - " it is very necessary that in this case we should lay down clearly how the evidence of panch witnesses should be appreciated. This point is frequently raised before us and conflicting judgments are 156 C.C.No. 33942/2011 being cited on this point. It is necessary to state how important and how valuable for the liberty of the subject the provisions with regard to search are, and the law provides that the house or the shop of a citizen cannot be searched in the absence of panchas. The Courts are bound to attach the greatest importance to the evidence of panch witnesses and in order that the Court should attach such importance to panch witnesses it is essential that panch witnesses should be independent witnesses, unbiased and without being in any way under the control of the police. It is only when panch witnesses are independent that the liberty of the subject can be safe guarded as far as searches are concerned. If it is established that a panch witness is likely to be a pliable agent in the hands of the police or is likely to be amenable to the influence of the police or he may be looked upon as a police agent, it is clear that the evidence of such a witness cannot be relied upon. Primarily it is for the Magistrate to come to the conclusion whether a panch witness suffers from the infirmity to which we have just drawn attention. He has to appreciate evidence and, as I said primarily it is for him to say whether the evidence of a particular panch witness should be believed or not. But the Court of appeal must be vigilant in seeing that convictions are not based upon the evidence of panch witnesses whose evidence should not be accepted as suffering from the infirmity of being in a 157 C.C.No. 33942/2011 position where they might be looked upon as police agents. In deciding whether the evidence of a panch witness should be believed or not, undoubtedly, his status and position in life should be considered. It should also be considered as to whether he is in the habit frequently of acting as a panch, because the very fact that a man constantly acts as a panch may lead to the inference that he is easily available to the police and he would be prepared to be amenable to their influence. The nature of the evidence given by the particular panch witness should also be borne in mine. The Government pleader is right when he suggests that the mere fact a man has acted on several occasions as a panch witness should not be sufficient by itself to lead to the inference that the man is a police agent. Take the case of a highly respectable man holding a status in life and who out of a sense of his duty to the State has gone and acted as a panch. Can it be said that a man like this should be disbelieved merely because what is established against him is the frequency with which he has acted as a panch witness.
227. In view of above decision, a man constantly acts as a panch may lead to the inference that he is easily available to the police and he would be prepared to be amenable to their influence and the nature of the evidence given by the particular panch witness should also be 158 C.C.No. 33942/2011 borne in mine. In the instant case, P.W.32 is the independent witness whose presence mahazar has been drawn and she specifically stated in her evidence that she told the DRI officer that she will say truth before the Court. Hence, nothing has been placed before the Court to show that she was easily available to the DRI officers and she has acted a panch witness on several occasions. Hence, facts of the above decision and facts of the case on hand are different and the above decision is not applicable to the case on hand.
228. The Ld. Counsel for the accused has relied upon the decision reported in 1940 SCC Online Bom114, in between Mohanlal Bababhai Vs. Emperor, wherein Hon'ble Bombay High Court has held that "5. The panchanama is merely a record of what a panch sees, and the only use to which it can properly be put is that when the panch goes into the witness box and swears as to what he saw, the panchanama can be used as a contemporary record to refresh his memory. But a police officer is not entitled to give evidence of what the panch told him, that he saw, and that is what it comes to if a police officer is allowed to put in the panchnama. A police witness may state that he held a panchanama and offer to produce the record if the accused asks for it, but he cannot bring it on record in his evidence in chief. If the police hold a 159 C.C.No. 33942/2011 panchnama, and do not offer to call the panch, an inference may be drawn against them from the fact that the panch is not submitted for cross examination. The putting in of a panchanama without calling the panch is not only an infringement of the rules of evidence against the admission of hearsay evidence, but it is unfair to the accused, because it enables the police to get the advantage of evidence in corroboration without putting that evidence to the test of cross examination. Such cross examination might show that the panch was nothing but a police agent, and that his evidence is worthless.
229. In the instant case, P.W.32 is the independent witness whose presence mahazar has been drawn and nothing has been placed before the Court to show that she is an agent of DRI officers. Hence, facts of the above decision and facts of the case on hand are different and the above decision is not applicable to the case on hand.
230. In view of the above discussion, this Court is of the view that, the prosecution has proved Ex.P.24 mahazar dated 27.06.2009.
231. The accused in his statement u/Sec.313 (5) of Cr.P.C. at para No.9 contended that as far as 2 live consignments out of 14 with reference to shipping bill No.2101235 and 2101554 both dated 27.05.2009 has 160 C.C.No. 33942/2011 been examined by the Central Excise Department at factory premises of M/s Tirupati Exports by Sri. D. Raghuram Inspector and Smt. Jyothi Chitagupi Superintendent of Central Excise and ascertain the correctness of the goods allegedly exported and after satisfaction, the goods were permitted to be exported with following due procedures, hence the allegation being made of false/mis-declaration is not available. It shows that the accused has admitted the examination of goods at factory premises of M/s Tirupati Exports by the Inspector and Superintendent of Central Excise and export made in respect to above said 2 shipping bills.
232. As per discussion made above, in Ex.P.7 file the examination report for factory sealed packages/contrs dated 29.05.2009 shows that Smt. Jyothi S. Chitagupi Superintendent of Central Excise is the supervising officer and Sri. D. Raghuram Inspector of Central Excise is the examination officer. Further, the certification by the Central Excise office signed by the Smt. Jyothi S. Chitagupi Superintendent of Central Excise and Sri. D. Raghuram Inspector of Central Excise department shows that they have examined 5% of goods in the containers No.TTNU 3871143 and TTNU 3469793.
161 C.C.No. 33942/2011233. P.W.4 - Sri. M.D. Doraiswamy the then Dy. Commissioner of Central Excise deposed that as per Ex.P.7, the examination reports were issued by Smt. Jyothi Superintendent of Central Excise and it is certified that the description of goods, quantity and value are as per the particulars furnished in the export invoice, however, in none of the examination reports, the individual number of packages opened and examined is mentioned by the officials of Kanakapura Range -I.
234. C.W.5 - K. Dinesh Chakravathy the then Deputy Commissioner of Central Excise, Bangalore examined as P.W.5 and he deposed that the exporters has to submit an application for export and based upon the application, the Range Superintendent or Inspector has to conduct the examination and he would seal the export consignment with one time Lock and prepare the examination report in this regard and if the goods are exported for specific ports like Dubai, Sharjha, Columbo, Singapore, Hongkong, then the Superintendent or Inspector shall examine the goods and the examiner has to take out 50% of the export consignment and out of that he has to open minimum of 2 packages with a maximum of 5 packages or 20 packages whichever is lowest and after examination, if the export goods was tallying with the declaration made in the export documents, then clearance 162 C.C.No. 33942/2011 will be given to the exporter for exporting goods.. P.W.5 further states that in Ex.P.7 none of the Examination Reports number of packages opened and examined are not mentioned and in ARE 1 Forms it is mentioned that the Superintendent had certified that, he opened and examined the packages of 5 and 10% of the packages of the goods and in the examination report for factory sealed packages, the number of packages are given, but the total number of packages which were opened is not mentioned.
235. On perusal of the Ex.P.7 Certification by the Central Excise office shows that they have examined 5% of goods. As stated by P.W.4 and 5, the individual number of packages opened and examined is not mentioned by the officials of Central Excise.
236. C.W.41 - Sri. Datta Kumar the then Deputy Director of DRI, Bangalore examined as P.W.25 and he deposed that they found a case of fraudulent availment of draw back by mis-declaring the contents and Mr. M. Eshaq, Sr. Intelligence Officer investigated the case of M/s Tirupati Exports and he has recorded the statement u/s 108 of Customs Act of Smt. Jyothi S. , Mr. Shankar Rao and Smt. Jayanthi. P.W.25 identified Ex.P.26 to 28 attested copies of the statements of Smt. Jyothi S. , Mr. Shankar Rao and Smt. Jayanthi and deposed that Smt. 163 C.C.No. 33942/2011 Jyothi S. , Mr. Shankar Rao and Smt. Jayanthi have signed on their respective statements in his presence.
237. P.W.25 further states that Smt. Jyothi S. , Mr. Shankar Rao and Smt. Jayanthi have not followed the procedures in examining the containers pertaining to M/s Tirupati Exports, hence he recorded their statements and according to him, Smt. Jyothi S. , Mr. Shankar Rao and Smt. Jayanthi have to examine 5% of the packages declaring the documents and verify the marks and numbers properly, but the same was not done in this case and they have stated that, they have examined few packages randomly without marks and numbers. He further states that the statements of Smt. Jyothi S. , Mr. Shankar Rao and Smt. Jayanthi forwarded to Commissionerate for necessary action. Smt. Jyothi S. ,Mr. Shankar Rao and Smt. Jayanthi have to examine minimum 5% to 10% packages in the container and after verification of the packages, they have to supervise the stuffing of packages in the container and then seal it and record the examination report accordingly and all these procedures has to be complied in the exporters premises and they have no sufficient space in their Kanakapura office, hence they are examining the containers in the exporter premises. He further states that after the export, the documents submitted to the draw back department 164 C.C.No. 33942/2011 and they process the claims and draw back is sanctioned on the number of pieces at unit rate depending on the contents and there is no weight consideration, only number of pieces are important. In his cross examination his states that, he has not investigated the case except recording the statements of Smt. Jyothi S. , Mr. Shankar Rao and Smt. Jayanthi.
238. C.W.38 - Sri. Vittal Sujeer, the then Intelligence Officer, DRI examined as P.W.25 and he identified his signature on Ex.P.44 statement of Smt. Jyothi Chitagupi. In his cross examination he specifically stated that he has typed Ex.P.44 document as per the dictation of deponent and the said statement was recorded by Sri. Datta kumar as per the deposition of Smt. Jyoti Chitagupi. Further he admitted that he does not know the contents of the Ex.P.44 except typing the same. Further, he states that he typed the statement of Smt. Jyoti Chitagupi whatever typed is deposed by her and statement were recorded based on the depositions of the persons giving the statements. Hence, nothing has been elicited in the cross- examination of P.W.35 to discredit his version.
239. C.W.42 - Sri. B.G. Nandakumar the then Sr. Intelligence Officer, DRI examined as P.W.26 and he deposed that he has recorded the statement of Sri. D. 165 C.C.No. 33942/2011 Raghuram Inspector of Central Excise, Kanakapura Range
- I as per direction by the Asst. Director and he identified Ex.P.33 statement.
240. Ex.P.26 is the attested copy and Ex.P.44 is the original statement of Smt. Jyoti S. Chitagupi dated 29.06.2009, it reveals that P.W.25 Dattakumar has recorded the statement of Smt. Jyoti S. Chitagupi Superintendent of Central Excise u/Sec.108 of Customs Act. In the said statement, she stated that she attended to two export clearance of M/s Tirupati Exports on 29.05.2009 which were exported under ARE-1 No.1/2009- 10 dated 29.05.2009 and ARE- 1 No.2/2009-10 dated 29.05.2009 and the Exporter informed them in respect to export ready made garments one day before the actual export i.e. on 28.05.2009 on telephone and he agreed to submit ARE-1 and other export documents 24 hours in advance, but the exporter failed to bring the documents on the next morning and he brought the documents late in the evening of 29.05.2009 at about 17.30 hours and she and Inspector D. Raghuram went to the premises and found that the container was already loaded and she verified approximately 5% of cargo in each of the two containers as certified in the respective ARE 1, sealed with Central Excise lead seal No.44 and put the One Time Lock each on both the containers and signed the documents 166 C.C.No. 33942/2011 including invoice and packing list. Further, she states that, as exporter came very late in the evening and when they reached the premises it was dark and container was already loaded and she opened the cartons which were at the door end of the container and examined a few cartons which had 20 number of Tshirts each and she agreed that she has not examined 5% of the stuffed cargo in both the containers as certified by her in the respective ARE -1s. Further, she has stated that she is aware of the seizure of ready made garments from the premises of M/s Tirupati Exports, Chuchunaghatta Road on 11.06.2009 and 27.06.2009 and she affixed her dated signatures on both the mahazars and agree with the contents of the same. Further, Smt. Jyoti S. Chitagupi has signed the Ex.P.44 by endorsing that she has read the statement once again and correctly typed.
241. Ex.P.33 is the original statement of Sri. D. Raghuram Inspector of Central Excise dated 29.06.2009. It reveals that P.W.26 B.G. Nanda kumar has recorded the statement of D.Raghuram Inspector of Central Excise u/Sec.108 of Customs Act. In the statement D. Raghuram stated that he attended and examined export consignments of M/s Tirupati Exports on 29.05.2009 which were exported under ARE-1 No.1/2009-10 dated 29.05.2009 and ARE- 1 No.2/2009-10 dated 29.05.2009 167 C.C.No. 33942/2011 along with Smt. Jyothi S. Chitagupi and the accused intimated over phone on 28.05.2009 about a probable export clearance on 29.05.2009 with export documents along with request letter for inspection and accused informed that export consignments are ready for stuffing and as he already filed shipping bill an urgent supervision and clearance of export consignments is required and it is kept ready for the examination by the officers and consignments have to leave for Tuticorin urgently and they have left the office at 5.45 p.m. on 29.05.2009 and reached the premises at 7.00 p.m. and noticed that export consignments packed in the cardboard cartons were already stuffed into the respective containers and the containers were fully stuffed and no other cartons boxes were left to load into the container and as the containers were already stuffed, examination of 5% of total export consignments as declared in the ARE-1 was not done , instead only few cartons boxes were removed and opened and examined. Further, he has stated that he is aware of the seizure of ready made garments from the premises of M/s Tirupati Exports, Chuchunaghatta Road on 11.06.2009 and 27.06.2009 and he affixed his dated signatures on both the mahazars and agree with the contents of the same. Further, Sri. D. Raghuram has signed the Ex.P.33 by endorsing that he has once again 168 C.C.No. 33942/2011 read over the statement and found to be correctly typed as stated by him.
242. The above statements of Superintendent and Inspector of Central Excise who examined the export consignments recorded u/Sec.108 of Customs Act reveals that they admitted in their statements that they have not examined 5% of stuffed cargo in both the containers in respect to ARE-1 No.1 and No.2 due to urgency made by the accused.
243. C.W.37 - Sri. Mukarram Eashaq the then Sr. Intelligence Officer, DRI examined as P.W.28. He stated in his evidence that he recorded 3 statements of accused in the month of June and July 2009 as per Ex.P.34 to 36 and while recording the statement of accused, inter alia stated that though he has received drawback amount from Customs department, he has not received foreign remittance for exports effected except for one advance payment and accused stated that he has mis-declared the quantity of garments exported to avail extra drawback. He was subjected to cross-examination by the Ld. Counsel for the accused wherein it is suggested that he has arrested the accused and put him in the custody and recorded the statement, then he replies that he recorded the statement of accused, but he does not remember whether he has 169 C.C.No. 33942/2011 arrested the accused or not. He denied the suggestions made by the Ld. Counsel for accused that he has forcibly taken the signature of the accused on the statement by giving threat to arrest of accused and his family members. Further, he denied the suggestions made by the Ld. Counsel for the accused that he has arrested the accused and produced before the Court. These suggestions made during the cross-examination of P.W.28 shows that the Counsel is not sure about whether the accused was arrested or not while recording the statements of accused. Once it is suggested that the statement has been recorded after arrest and put the the accused in the custody and further it is suggested that he has forcibly taken the signature of the accused on the statement by giving threat of arrest. It shows that the Ld. Counsel is not sure about arrest of the accused at the time of recording of statements. Further, as per the evidence of P.W.28, if he arrested the accused, then he will produce him before the Court. No records is produced before the Court to show that the accused was arrested by the DRI officers at the time of recording of statements of the accused on 12.06.2009 or 03.07.2009. Further the accused in his statement filed u/Sec.313 (5) of Cr.P.C. at para No.11 contended that during the investigation, he has given retraction statement by way of speed post to DRI alleging that his signature took on the statement u/Sec.108 of 170 C.C.No. 33942/2011 Customs Act on the threat of arrest and same cannot be relied and said retraction statement has been suppressed by the CBI as well as DRI purposely not placed on record. This statement of accused, clearly shows that he has not been arrested by the DRI officers at the time of recording of statement u/Sec.108 of Customs Act. Hence, there is no substance in the contention of the accused for the accused that the statement of the accused taken after his arrest and during the custody. Further, the accused alleged that he has given the retraction statement by way of speed post to DRI. It is pertinent to note that, no postal receipt is produced by the accused to show that he has sent retraction statement through speed post. It is pertinent to note that, no suggestions made by the Ld. Counsel for accused during the cross-examination of P.W.28 that accused has sent retraction statement through speed post. It shows that it is an after thought. No piece of document produced before the Court to show that, accused has sent the retraction statement through speed post. Hence, there is no substance in contention of the accused.
244. Ex.P.34 is the true copy of the statement of accused recorded u/Sec.108 of Customs Act on 12.06.2009 by the P.W.28. It reveals that, the accused has stated before the DRI officer/P.W.28 that, he established 171 C.C.No. 33942/2011 the trading firm Ankita Trading Fze, P.O. Box No.10559, RAKFTEZ, Rasal Khaima, UAE for carrying out his trading business and he is the proprietor of the said firm. Short shipment of ready made garments (100% cotton knitted Tshirts) were effected by him under drawback scheme in respect to invoice No.16/10.03.2009, 15/10.03.2009, 18/20.03.2009, 17/20.03.2009, 20/27.03.2009, 001/23.05.2009, 002/23.05.2009 and he has received approximately Rs.25 lakhs amount of drawback in respect to export of consignments at invoice No.16/10.03.2009, 15/10.03.2009, 18/20.03.2009, 17/20.03.2009, 20/27.03.2009 and he has not yet receive the drawback amount in respect invoice No. 001/23.05.2009, 002/23.05.2009. Further, it is mentioned in the said statement that 'during the course of recording this statement, no threat, force or coercion was thrust upon me and this statement is given by me willingly and it contains true and correct facts'. Further, the accused endorsed on the said statement that he has read the statement once again. It is correctly typed as stated by him. Along with the statement, the self attested copy of account statement and details of consignments were also produced. This statement was typed by P.W.35 Vittal Sujeer, Intelligence Officer, DRI.
172 C.C.No. 33942/2011245. Ex.P.35 is the true copy of the statement of accused recorded u/Sec.108 of Customs Act on 03.07.2009 by the P.W.28. It reveals that, the accused has stated before the DRI officer/P.W.28 that, DRI officers have seized his 2 consignments exported under shipping bills No.2101235 and 2101554 both dated 27.05.2009 at Tirupati Exports and on 27.06.2009 which were called from UAE and he was present during the seizure proceedings and he agreed with the contents of mahazar dated 27.06.2009 drawn on that day. Further, accused requested for time in respect to giving details of export receipts and purchase bills.
246. Ex.P.36 is the statement of accused recorded u/Sec.108 of Customs Act on 21.07.2009 by the P.W.28. It reveals that, the accused has stated before the DRI officer/P.W.28 that, the account of M/s Tirupati Export is maintained only at City Union Bank, Indiranagar, Bangalore, C.A.No. 87664 and he does not have any other account in the name M/s Tirupati Exports. Further, the accused has given information about other consignment exported by him.
247. On perusal of Ex.P34 to 36 statements of accused recorded u/Sec.108 of Customs Act, he clearly admits that he established the trading firm Ankita Trading 173 C.C.No. 33942/2011 Fze, P.O. Box No.10559, RAKFTEZ, Rasal Khaima, UAE for carrying out his trading business and he is the proprietor of the said firm and short shipment of ready made garments (100% cotton knitted Tshirts) were effected by him under drawback scheme in respect to invoice No.16/10.03.2009, 15/10.03.2009, 18/20.03.2009, 17/20.03.2009, 20/27.03.2009, 001/23.05.2009, 002/23.05.2009.
248. It is pertinent to note that as per the oral and documentary evidence produced before the court, the accused has exported the consignments to Ankita Trading FZE, RAKFTZ, Rasal Khaimah, UAE. The accused has admitted in his statement recorded u/s 108 of Customs Act that he established the trading firm Ankita Trading Fze, P.O. Box No.10559, RAKFTEZ, Rasal Khaima, UAE for carrying out his trading business and he is the proprietor of the said firm.
249. As per Sec.106 of Indian Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
250. The accused has submitted his statement u/s 313 (5) of CrPC wherein he disputed his statement recorded u/s 108 of CrPC, but he has not stated who is the Proprietor of Ankita Trading FEZ, P.O. Box No.10559, 174 C.C.No. 33942/2011 RAKFTEZ, Rasal Khaima, UAE. It is pertinent to note that the accused has made his business transaction with Antika Trading FEZ, hence the fact that who is the Proprietor of the said firm is especially within the knowledge of the accused. Hence the burden is on the accused to prove the fact that who is the Proprietor of the Ankita Trading FEZ. But the accused even not at all denied in his statement u/Sec.313 (5) of Cr.P.C. that he is the Proprietor of Ankita Trading FEZ.
251. Further, accused has admitted in his statements recorded u/Sec.108 of Customs Act that DRI officers have seized his 2 consignments exported under shipping bills No.2101235 and 2101554 both dated 27.05.2009 at Tirupati Exports and on 27.06.2009 which were called from UAE and he was present during the seizure proceedings and he agreed with the contents of mahazar dated 27.06.2009 drawn on that day.
252. Section 108 of Customs Act, 1962 reads as under -
108. Power to summon persons to give evidence and produce documents.
(1) Any Gazetted Officer of Customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act.
175 C.C.No. 33942/2011(2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required:
Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code.
253. In view of the above provision of law, any gazatted officer of the customs shall have power to summon any person to give evidence or to produce document or thing in the inquiry if necessary and all persons so summoned shall be bound to attend either in person or by authorized agent and shall bound to state the truth upon the subject or make statements or produce the documents and other things which are required and every such enquiry shall be deemed to be a judicial proceedings within the meaning of 193 and 228 of IPC.
176 C.C.No. 33942/2011254. As per Section 193 of IPC, whoever intentionally gives false evidence in any stage of judicial proceeding or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding shall be punished.
255. As per Section 228 of IPC whoever intentionally offers any insult or causes any interruption to any public servant, while such public servant is sitting in any stage of judicial proceeding shall be punished.
256. The Ld. Counsel for the accused has relied upon the decision reported in 2015 SCC Online Kar 8769, in between Muddoru Rajappa Tipanna Vs. State of Karnataka wherein Hon'ble High Court of Karnataka has held that - 14. The learned Sessions Judge has referred to the provision of Section 8 of the Indian Evidence Act which refers to a general rule regarding the acceptance of those facts which are within the knowledge of an accused. It is relevant to note that when there is a specific provision prohibiting a confessional statement as evidence, it is the exception which has to be followed an not the general rule. So it is Section 25 which prohibits the acceptance of confessional statement of the accused in evidence particularly in the context of Article 20 (3) of the Constitution of India wherein an incriminating statement made by the accused cannot be used as evidence against 177 C.C.No. 33942/2011 him and that is the basic principle underlying the provisions of Section 25 of the Indian Evidence Act.
257. In the above decision, the voluntary statement of accused and admitting it in the evidence was discussed in respect to Section 25 to 27 of Indian Evidence Act. In this case, the statements of the accused and witnesses recorded u/Sec.108 of Customs Act. As discussed above, the statements u/Sec.108 of Customs Act recorded during the inquiry by the gazetted officer of Customs and such inquiry deem to be a judicial proceedings. Hence, facts of the above decision and facts of the instant case are different and the above said decision is not applicable to the present case on hand.
258. The Ld. Counsel for the accused has relied upon the decision reported in Crl.Appl.No.368 of 1985 in between The Asst. Collector of Customs Vs. Abdul Rasheed and another, wherein Hon'ble High Court of Karnataka has held that - there is really no evidence to show that what was seized from the accused was pure gold, unless it is before the statement of the accused supposedly made on the date of seizure, which is treated as statement under Sec.108 of the Customs Act. Basing on this aspect of the matter, Mr. Ashok Harnahalli urged that ex facie the view of the Court-below was untenable 178 C.C.No. 33942/2011 and we think that in the circumstances, the statement purporting to be made under Sec.108 is not really of any efficacy at all. In the first instance, the seized goods are not proved to be gold and then the fact that in relation to seizure, there is an admission and confession of accused is of hardly any consequence. What is more the statement Ex.P.2 having been retracted by the accused, the prosecution takes the burden of establishing the same in accordance with law.
259. In the above decision, the samples of gold seized have been taken when the accused was not present, but claiming that the samples were taken from the gold seized from the accused. Hence, the Hon'ble High Court held that there is really no evidence to show that what was seized from the accused was pure gold unless the statement of the accused supposedly made on the date of seizure. Instant case, the material seized from the accused were handed over to the accused under Ex.P.31 - Supratnama on the same day after drawing the samples. Hence, facts of the above decision and facts of the instant case are different and the above said decision is not applicable to the present case on hand.
260. The Ld. Counsel for the accused has relied upon the decision reported in 2020 SCC Online Bombay 39, 179 C.C.No. 33942/2011 in between Union of India Vs. Kisan Ratan Singh and others, wherein Hon'ble High Court of Bombay held that - Under Section 108 of the Customs Act, the customs officer is also vested with power to summon persons to give evidence documents and all persons so summoned are bound to attend, on being summoned. The statement made to the custom officer is not hit by section 25 of the Indian Evidence Act, 1872, the position of law being very well settled that the Customs Officers are not police officers and resultant, a statement made to the customs officer is not hit by section 25. At the same time, the position of a retracted confession is also well-settled; without any independent corroboration it cannot sustain a conviction and retracted confession may form basis of conviction without corroboration if it is found to be perfectly voluntary, true and trustworthy. The court is duty bound to examine whether the statement referred to as a confessional statement meets the test of truthfulness and being voluntary in nature. In absence of any independent material brought on record by the appellant, the Chief Metropolitan Magistrate was perfectly justified in acquitting accused No.2. In absence of any evidence corroborating the statement of accused No.2 made before the customs officer on March 24, 1996 under section 108 of the Customs Act, the statement in isolation do not 180 C.C.No. 33942/2011 warrant conviction, particularly when it is retracted with a plea of coercion."
261. In view of the above decision, the Court is duty bound to examine whether the statement refer to as a confessional statement meets the test of truthfulness and being voluntary in nature and in absence of any evidence corroborating the statement of accused made before the Customs Officer u/Sec.108 of Customs Act, the statement in isolation do not warrant conviction, particularly when it is retracted with a plea of coercion. Instant case, the prosecution has produced the oral and documentary evidence before the Court as accused has given statements u/Sec.108 of Customs Act before the Customs Officers. It is well settled law that, the statement of accused cannot be accepted blindly without corroboration. In this case, the prosecution has produced the statements of accused and also examined the persons who recorded the statements and typed and nothing has been elicited in their cross-examination to discredit their version. Further, the accused has not placed any evidence to show that he retracted his statements. The prosecution has placed the evidence corroborating the statements of accused made u/Sec.108 of Customs Act in respect to shipping bill No.2101235 and 2101554 dated 27.05.2009. Hence, facts of the above decision and facts of the instant case are 181 C.C.No. 33942/2011 different and the above said decision is not applicable to the present case on hand.
262. The Ld. Counsel for the accused has relied upon the decision reported in (2015) 4 Supreme Court Cases 435, in between A Tajudeen Vs. Union of India, wherein Hon'ble Supreme Court has held that - 27. First and foremost, we shall endeavour to examine the veracity of the statements made by the appellant A. Tajudeen and his wife T. Sahira Banu on 25.10.1989 and 26.10.1989 to the officers of the Enforcement Directorate. Before proceeding without factual controversy, it is essential to record that from the view we have taken in the ultimate analysis, the innocence or guilt of the appellant will have to be determined on the basis of the statements made by the appellant and his wife on 25.10.1989 and 26.10.1989 to the officers of the Enforcement Directorate. Therefore, for the case in hand, the above statements are not to be referred to as corroborative pieces of evidence, but as primary evidence to establish the guilt of the appellant. It is in this background, that we shall endeavour to apply the legal position declared by this Court, to determine the veracity and reliability to the statements, which later came to be retracted by the appellant and also by his wife. In so far as the above statements are concerned, there is no doubt what so ever, that they were all made either at the 182 C.C.No. 33942/2011 time of the raid, which was carried out by the officers of the Enforcement Directorate at the residence of the appellant, or whilst the appellant was in custody of the Enforcement Directorate. Immediately after the appellant was released on bail by the Additional Chief Metropolitan Magistrate, Madras on 27.10.1989, on the same day itself, both the appellant A. Tajudeen and his wife T. Sahira Banu addressed communications to the Director, Enforcement Directorate, New Delhi resiling from the above statements, by clearly asserting that they were recorded under coercion and undue influence, and would not be binding on them. 28. Having given our thoughtful consideration to the aforesaid issue, we are of the view that the statements dated 25.10.1989 and 26.10.1989 can under no circumstances constitute the sole basis for recording the finding of guilt against the appellant. If findings could be returned by exclusively relying on such oral statements, such statements could easily be thrust upon the persons who were being proceeded against on account of their actions in conflict with the provisions of the 1973 Act. Such statements ought not to be readily believable, unless there is independent corroboration of certain material aspects of the said statements, thorugh independent sources. The nature of the corroboration required, would depend on the facts of each case. In the present case, it is apparent that the appellant A. Tajudeen 183 C.C.No. 33942/2011 and his wife T. Sahira Banu at the first opportunity resiled from the statements which are now sought to be relied upon by the Enforcement Directorate, to substantiate the charges leveled against the appellant. We shall now endeavor to examine whether there is any independent corroborative evidence to support the above statements.
263. In view of the above decision, statements ought not to be readily believable, unless there is independent corroboration of certain material aspects of the said statements, through independent sources and the nature of the corroboration required, would depend on the facts of each case. In this case, the prosecution has produced the statements of accused and also examined the persons who recorded the statements and nothing has been elicited in his cross-examination to discredit his version. Further, the accused has not placed any evidence to show that he retracted his statements. The prosecution has placed the evidence corroborating the statements of accused made u/Sec.108 of Customs Act. Hence, facts of the above decision and facts of the instant case are different and the above said decision is not applicable to the present case on hand.
264. In a decision reported in 1964 SCC Online SC 253 in between Soni Vallabhdas Liladhar Vs. Asst.
184 C.C.No. 33942/2011Collector of Customs, wherein Hon'ble Supreme Court has held that - Customs officer are not police officers and statements made to them were not inadmissible under section 25. Section 24 would however apply, for Customs authorities must be taken to be persons in authority and the statements would be inadmissible in a criminal trial if it is proved that they were caused by inducement, threat or promise. But the finding of all the courts is that the statements were not made on account of any inducement, threat or promise as required by section 24 of the Indian Evidence Act.
265. In view of the above decision, Customs officer are not police officers and statements made to them were not inadmissible under section 25 of Indian Evidence Act, however Section 24 of Indian Evidence Act would apply and the statements would be inadmissible in a criminal trial if it is proved that they were caused by inducement, threat or promise. Instant case, the prosecution has examined the P.W.28 who recorded the statements of accused and nothing has been elicited in his cross- examination that the said statements were made on account of any inducement, threat or promise. Further, the accused has not placed any evidence to show that he retracted his statements. Hence, the statements of 185 C.C.No. 33942/2011 accused are admissible in evidence as the same were not made on account of any inducement, threat or promise.
266. In a decision reported in (2015) 13 SCC 198 in between IVRCL Infrastructure & Projects Ltd. v. Commissioner of Customs, wherein Hon'ble Supreme Court has held that - statements made to an officer of Customs under section 108 are admissible in evidence. The court has merely to scrutinise whether the admissions made were voluntary or otherwise.
267. In view of the above decision, the statements made to an officer of the Customs u/Sec.108 of Customs Act are admissible in evidence and the Court has to scrutinise whether the admissions made were voluntary or otherwise. Instant case, the prosecution has examined the P.W.28 who recorded the statements of accused and nothing has been elicited in his cross-examination that the said statements were made on account of any inducement, threat or promise. Further, the accused has not placed any evidence to show that he retracted his statements. Hence, the statements of accused are admissible in evidence as the same were made voluntarily.
268. It is well settled law that, statements made to an officer of Customs u/Sec.108 of Customs Act are admissible in evidence if it is voluntarily and the 186 C.C.No. 33942/2011 statement were not made on account of any inducement, threat or promise as required u/Sec.24 of Indian Evidence Act and such statements not hit by Section 25 of Indian Evidence Act.
269. As per Section 24 of the Indian Evidence Act speaks that a confession made by an accused person is irrelevant in a Criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused persons, proceeding from a person in authority and sufficient, in the opinion of Court to give the accused person grounds, which would appear to him reasonable, for supposing that by making hit he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
270. In view of the discussion made above, the prosecution has placed the evidence before the Court to show that the statements made by the accused and Smt. Jyothi C. Chitagupi and D. Raghuram the Central Excise officers u/Sec.108 of Customs Act are voluntarily one and the statements were not made on account of any inducement, threat or promise as required u/Sec.24 of Indian Evidence Act. Hence, the statements of accused which are marked as per Ex.P.34 to 36 and the statement 187 C.C.No. 33942/2011 of the Smt. Jyoti Chitagupi which is marked as Ex.P.44 and statement of the D. Raghuram which is marked as Ex.P.33 are admissible in evidence. Hence, there is no substance in the contention of the accused that his statement recorded on the threat of arrest and the Central Excise officers have correctly examined the consignment in respect to shipping bill No.2101235 and 2101554 both dated 27.05.2009 and after due satisfaction, they permitted to export both consignments.
271. It is well settled law that, the statement of accused cannot be accepted blindly without corroboration. As discussed above, in respect to 12 past consignment, there is no corroborative evidence produced before the Court to show that there was a mis-declaration of quantity and value in the export documents. Hence, without physical examination of the goods in the sealed containers by the officers of Central Excise or Customs or DRI in respect to above said 12 exported consignments and without verifying and seizing of the goods in the said sealed containers under mahazar, it cannot be assumed that there was a mis-declaration in the export documents. Though the accused has availed duty drawback amount in respect to above said 12 past consignments, but the evidence available before the Court did not show that there was a mis-declaration in respect to 12 past 188 C.C.No. 33942/2011 consignment except two consignments which were brought back from Dubai. Under such circumstances, the version of the prosecution about mis-declaration of quantity and its value in the export documents in respect to 12 past consignments under Shipping Bills bearing Nos.2028123 dated 22.12.2008, 2042815 dated 19.01.2009, 2043522 dated 20.01.2009, 2060231 dated 20.02.2009, 2062306 dated 26.02.2009, 2062317 dated 26.02.2009, 2068608 dated 11.03.2009, 2068609 dated 11.03.2009, 2074284 dated 23.03.2009, 2074285 dated 23.03.2009, 2076953 dated 27.03.2009, 2076954 dated 27.03.2009 cannot be accepted. Hence, prosecution has failed to establish that the accused mis-declared the number of packages and number of pieces and its value in the export documents under Duty Drawback Scheme covered under above said 12 shipping bills.
272. As discussed above, the two sealed containers which were sent to Jabel Ali Port, UAE under shipping bills No.2101235 and 2101554 both dated 27.05.2009 were brought back on the direction of DRI officers and the seals of the containers were broken after verification of the Central Excise seal and One Time Lock and found intact by the DRI Officers in the presence of accused, the Central Excise Superintendent and Inspector who put the seal on the said containers and also independent witnesses and 189 C.C.No. 33942/2011 physically verified the contents of the both containers and compared and tallied the quantity of the goods in the containers and export documents and found mis- declaration of quantity in the export documents. Further, as discussed above, the prosecution has proved the Ex.P.24 mahazar dated 26.07.2009 in respect to mis- declaration of quantity. Moreover, the seized goods in both the containers were handed over to the accused under Ex.P.31 Supratnama. Further, the prosecution has proved the statements made by the accused and Smt. Jyoti Chitagupi and D. Raghuram recorded u/Sec.108 of Customs Act are voluntarily and without any coercion or inducement or threat. Further, the prosecution has placed the corroborative evidence to admit the statements of the accused in evidence. Hence, the prosecution has proved that during the 2009, the accused has mis-declared the number of packages and number of pieces and its value in the export documents under duty drawback scheme covered under shipping bill No.2101235 and 2101554 both dated 27.05.2009 and received the drawback amount of Rs.8,56,344/- in respect to shipping bill No.2101235 dated 27.05.2009 and attempted to receive the drawback amount of Rs.8,54,856/- in respect to shipping bill No.2101554 dated 27.05.2009.
190 C.C.No. 33942/2011273. Sec.132 of Customs Act reads as under:
132. False declaration, false documents, etc.--Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
274. In view of the above provision of law, whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punished.
275. Instant case, as discussed above, the accused has submitted the ARE-1 No.1 and 2 both dated 29-05- 2009, export invoices No.001/2009-10 and 002/2009-10 both dated 23-05-2009 along with packing list to the Central Excise Office with a request letter for inspection of shipment of goods as per Ex.P7 documents and the accused has signed the said documents in the transaction of his business relating to the Customs knowingly or 191 C.C.No. 33942/2011 having reason to believe that such declaration, statement or document is false.
276. Sec.135 of Customs Act reads as under:
135. Evasion of duty or prohibitions.--
(1) Without prejudice to any action that may be taken under this Act, if any person--
(a) is in relation to any goods in any way knowingly concerned in mis-declaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or
(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harboring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or Section 113, as the case may be; or
(c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under Section 113; or
(d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods, or
(e) obtains an instrument from any authority by fraud, collusion, willful misstatement or suppression of facts and such instrument has been utilised by such person or any other person.
he shall be punishable,--
(i) in the case of an offence relating to,--192 C.C.No. 33942/2011
(A) any goods the market price of which exceeds one crore of rupees; or (B) the evasion or attempted evasion of duty exceeding 4 [fifty lakh] of rupees; or (C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds fifty lakh of rupees, or (E) obtaining an instrument from any authority by fraud, collusion, willful, misstatement or suppression of facts and such instrument has been utilised by any person, where the duty relatable to utilisation of the instrument exceeds fifty lakhs, with imprisonment for a term which may extend to seven years and with fine:
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year;
(ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.
(2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine:
Provided that in the absence of special and adequate reasons to the contrary to be 193 C.C.No. 33942/2011 recorded in the judgment of the court such imprisonment shall not be for less than one year.
(3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely:--
(i) the fact that the accused has been convicted for the first time for an offence under this Act;
(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;
(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence;
(iv) the age of the accused.
277. In view of Sec.135(1)(d) of the Customs Act, without prejudice to any action that may be taken under Customs Act, if any person fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods shall be punished.
278. As per the discussion made above, the prosecution has proved that the accused has fraudulently 194 C.C.No. 33942/2011 availed the duty drawback amount of Rs.8,56,344/- under the Customs Act in connection with export of goods under shipping bill No.2101235 dated 27-05-2009 and he attempted to avail duty draw back amount of Rs.8,54,856/- under the Customs Act in connection with export of goods under shipping bill No.2101554 dated 27- 05-2009.
279. Ex.P.47 is the sanction order issued by PW36 C.Rajendran, Commissioner of Customs, Tuticorin. It reveals that he accorded the sanction u/s 137(1) of the Customs Act 1962 for the prosecution of the accused u/s 132, 135, 135A of the Customs Act and for taking cognizance of the said offences by the court of competent jurisdiction. Further it reveals that he being the competent authority to accord sanction u/s 137(1) of Customs Act and after fully and carefully examining the materials placed before him, such as the copy of the FIR, statements u/s 161 of Cr.P.C. recorded by the DSP, CBI, Bengaluru during investigation and copies of all other material documents collected in connection with the investigation of criminal case in RC.17(A)/2010-BLR Registered in respect of the allegations and circumstances of the case and after having applied his mind on the said materials placed before him, satisfied that a prima facie case is made out against the accused for being prosecuted in a 195 C.C.No. 33942/2011 court of law for the offences u/s 420, 468, 471 of IPC and Sec.132, 135 and 135(A) of the Customs Act 1962.
280. P.W.36 Sri.C.Rajendran the then Commissioner of Customs deposed that he received the request letter from CBI, Bengaluru seeking sanction for prosecution u/s 137(1) of Customs Act of accused and thereafter he examined the documents forwarded by CBI and other documents in their file and he accord sanction for prosecuting the accused on 28-10-2011 and he has gone through documents thoroughly and applied his mind and gave sanction as there is prima facie case initiating the case against the accused and he is the proper authorised officer to accord sanction. In his cross examination, he states that the file maintained at the time of giving sanction order is kept in the Customs House Tuticorin and he has to verify the file maintained in their office to say about whether the statement of accounts pertaining to M/s.Tirupati Exports for the year 2009-10 placed before him before passing the sanction order. Further he denied that he has issued sanction order without any authority.
281. Section 137 of Customs Act 1962 speaks that no court shall take cognizance of any offence u/s 132, 133, 134 or 135 or 135A except with the previous sanction of the Commissioner of Customs. Instant case, Ex.P47 196 C.C.No. 33942/2011 and evidence of P.W.36 clearly reveals that the CBI has taken the previous sanction of the Commissioner of Customs to prosecute the accused u/s 132, 135, 135A of Customs Act. Further, it is pertinent to note that the accused has challenged the order of this court on hearing before charge dated 16.09.2013, wherein the contention of the accused that this Court is not having jurisdiction to take the cognizance for the offence punishable u/Sec.132 and 135 of the Customs Act and the same was rejected. Against the said order, the accused preferred the Crl.R.P.No.333/2013 before the Hon'ble XXXII ACC&SJ and Spl. Judge for CBI Cases, Bangalore and the said Revision Petition was dismissed on 20.08.2016. Against the said order, the accused preferred the Crl.P.No.7603/2016 before the Hon'ble High Court of Karnataka, Bangalore and the said criminal petition was dismissed on 25.01.2022.
282. In view of the above discussion, this court is of the view that the P.W.36 has accord the sanction u/s 137 of Customs Act to prosecute the accused for the offence punishable u/s 132, 135, 135A of Customs Act as per Ex.P47 in accordance with law.
283. The learned counsel for accused has produced the copy of the judgment in C.C.No.212/2013 dated 27- 197 C.C.No. 33942/2011 06-2018 on the file of the Special Court for Economic Offences, Bangalore. It reveals that the Asst. Commissioner of Customs has filed the private complaint against the accused herein for the offence punishable u/Sec.135(1)(d) of the Customs Act and the accused has shown as he is the Proprietor of M/s. Shubh Impex and alleged that the officers of DRI, examined the export consignment stuffed in two containers belonging to M/s Tirupati Exports on 10.06.2009 and found mis-declaration of quantity and goods were seized under mahazar dated 10.06.2009 and on the same the day the residence of accused was searched and some incriminating documents were seized and case was registered against the accused and detained under COFEPOSA on 21.07.2009 and investigation revealed that the accused had availed ineligible duty drawback of Rs.1,74,28,413/- as the Director M/s Ronak Plastics Pvt. Ltd., and existence of M/s Shubh Impex in the address under the proprietorship of the accused came to light and investigation was initiated and accused had effected 8 exports and availed the drawback duties and no foreign inward remittance were made into the bank account of the accused and accused had received ineligible duty drawback to the extent of Rs.78,98,800/-.
198 C.C.No. 33942/2011284. On perusal of the judgment in C.C.No.212/2013 on the file of the Special Court for Economic Offences, Bangalore, the complaint was lodged u/Sec.200 of Cr.P.C. by the Asst. Commissioner of Customs against the accused herein for the offence punishable u/Sec.135 (1) (d) of the Customs Act, 1962 in respect to availing of ineligible duty drawback amount of Rs.78,98,800/- as a proprietor of M/s Shubh Impex and he had not received the export proceeds for the export effected within six months under the Foreign Exchange Management Act, 1999. Instant case, charge sheet has been filed against the accused being the proprietor of M/s Tirupati Exports with a dishonest intention to cheat the Government of India, mis-declared the number of packages and number of pieces and its value in the export documents under duty drawback scheme covered under 14 shipping bills and fraudulently availed duty drawback amount of Rs.1,10,34,264/-. Further, in the above said judgment at page No.22 in para No. 25 it is observed that admittedly criminal case was launched against M/s Tirupati Exports. Hence, the alleged offence, facts and circumstances of the case in C.C.No.212/2013 on the file of Special Court for Economic Offences, Bangalore is different from this case. Hence, the findings made in the said judgment will not helpful to the accused in this case.
199 C.C.No. 33942/2011285. The learned counsel for accused has produced the copy of the judgment in C.C.No.211/2013 dated 27- 06-2018 on the file of the Special Court for Economic Offences, Bangalore. It reveals that the Asst. Commissioner of Customs has filed the private complaint against the accused herein for the offence punishable u/Sec.135(1)(d) of the Customs Act and the accused has shown as he is the Director of M/s. Ronka Plastics Pvt. Ltd., and alleged that the officers of DRI, examined the export consignment stuffed in two containers belonging to M/s Tirupati Exports on 10.06.2009 and found mis- declaration of quantity and goods were seized under mahazar dated 10.06.2009 and on the same the day the residence of accused was searched and some incriminating documents were seized and case was registered against the accused No.1 who appears to be the Director of accused No.2 M/s Ronak Plastics Pvt. Ltd., and investigation revealed that the accused had availed ineligible duty drawback of Rs.1,97,96,919/- as the Director M/s Ronak Plastics Pvt. Ltd., and investigation was initiated and accused had effected exports and availed the drawback duties and no foreign inward remittance were made into the bank account of the accused and accused had received ineligible duty drawback to the extent of Rs.1,97,96,919/-.
200 C.C.No. 33942/2011286. On perusal of the judgment in C.C.No.211/2013 on the file of the Special Court for Economic Offences, Bangalore, the complaint was lodged u/Sec.200 of Cr.P.C. by the Asst. Commissioner of Customs against the accused herein for the offence punishable u/Sec.135 (1) (d) of the Customs Act, 1962 in respect to availing of ineligible duty drawback amount of Rs.1,97,96,919/- as a Director of M/s Ronak Plastics Pvt. Ltd., and accused failed to produce the documents relating to the purchase of goods exported by him and not furnished the declaration that he received the foreign exchange representing the full export value of the goods as per Rule 9 of Foreign Exchange Regulations Rules, 1974. Instant case, charge sheet has been filed against the accused being the proprietor of M/s Tirupati Exports with a dishonest intention to cheat the Government of India, mis-declared the number of packages and number of pieces and its value in the export documents under duty drawback scheme covered under 14 shipping bills and fraudulently availed duty drawback amount of Rs.1,10,34,264/-. Further, in the above said judgment at page No.21 in para No.25 it is observed that admittedly criminal case was launched against M/s Tirupati Exports. Hence, the alleged offence, facts and circumstances of the case in C.C.No.211/2013 on the file of Special Court for Economic Offences, Bangalore is different from this case.
201 C.C.No. 33942/2011Hence, the findings made in the said judgment will not helpful to the accused in this case.
287. The Ld. Counsel for accused has relied upon a decision reported in (2013) 12 Supreme Court Cases 406, in between Sujit Biswas Vs. State of Assam, wherein Hon'ble Supreme Court has held that - 13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be"
and must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and " must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete 202 C.C.No. 33942/2011 and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. 25. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself.
288. In view above decision, the court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. Instant case, as discussed above, the prosecution has produced clear, cogent and unimpeachable evidence before the Court to prove that the accused has mis-declared the quantity of the goods and 203 C.C.No. 33942/2011 its value in the export documents in respect to 2 shipping bills and fraudulently availed duty drawback amount in respect to one shipping bill. Hence, the facts of the above decision and facts of the case on hand are different. Therefore, the above decision is not applicable to the facts of the case on hand.
289. The Ld. Counsel for accused has relied upon a decision reported in (1990) 3 Supreme Court Cases 190 in between Vijayee Singh and Others Vs. State of U.P. wherein the Hon'ble Supreme Court has held that - the general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can indirectly introduce such circumstances by way of cross-examination and also rely on the probabilities and the other circumstances. Then the initial presumption against the accused regarding the non-existence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt 204 C.C.No. 33942/2011 arises the benefit of it should go to the accused. The accused can also discharge the burden under Section 105 by preponderance of probabilities in favour of his plea. In case of general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the court, after due consideration of the evidence in the light of the above principles, if satisfied, would state, in the first instance, as to which exception the accused is entitled to then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly.
290. In view above decision, the general burden of establishing the guilt of accused is always on the prosecution and it never shifts and even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden. Instant case, as discussed above, the prosecution has established that the accused has mis-declared the quantity of the goods and its value in the export documents in respect to 2 shipping bills and fraudulently availed duty drawback amount in respect to one shipping bill beyond all reasonable doubt. Hence, the facts of the above decision and facts of the case on hand are different. Therefore, the 205 C.C.No. 33942/2011 above decision is not applicable to the facts of the case on hand.
291. The Ld. Counsel for accused has relied upon a decision reported in (1972) 3 Supreme Court Cases 22, in between Dr. S.L.Goswami Vs. State of M.P. wherein Hon'ble Supreme Court has held that - in our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is pulpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecuiton. Where the onus shifts to the accused, and the evidence on his behalf probabilities the plea he will be entitled to the benefit of reasonable doubt.
206 C.C.No. 33942/2011292. In view above decision, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. Instant case, as discussed above, the prosecution has proved all the ingredients of the alleged offences against the accused that the accused has mis-declared the quantity of the goods and its value in the export documents in respect to 2 shipping bills and fraudulently availed duty drawback amount in respect to one shipping bill beyond all reasonable doubt. Hence, the facts of the above decision and facts of the case on hand are different. Therefore, the above decision is not applicable to the facts of the case on hand.
293. The Ld. Counsel for accused has relied upon a decision reported in 1993 Supp (4) Supreme Court Cases 344, in between Ram Swarup and Others Vs. State of Haryana, wherein Hon'ble Supreme Court has held that - the real onus is on the prosecution party to prove its case, including the manner of occurrence beyond all reasonable doubts; the accused has only to raise a doubt in the mind of the court or to satisfy the court that defence version disclosed by the accused was a probable version of the occurrence.
207 C.C.No. 33942/2011294. In view above decision, the real onus is on the prosecution to prove its case, including the manner of occurrence beyond all reasonable doubts. Instant case, as discussed above, the prosecution has proved all the ingredients of the alleged offences against the accused including the manner of occurrence that the accused has mis-declared the quantity of the goods and its value in the export documents in respect to 2 shipping bills and fraudulently availed duty drawback amount in respect to one shipping bill beyond all reasonable doubt. Hence, the facts of the above decision and facts of the case on hand are different. Therefore, the above decision is not applicable to the facts of the case on hand.
295. The Ld. Counsel for accused has relied upon a decision reported in (2014) 3 Supreme Court cases 412, in between Vijay Kumar Vs. State of Rajasthan, wherein Hon'ble Supreme Court has held - 18. The identification proceedings of the articles was conducted by PW 83 Tahsildar Durga Prasad Sharma in Tehsil and he has claimed to have prepared 72 identification reports. In the cross examination he has admitted that there were policemen present at the time of identification and he did not know the articles bought to him were in sealed packets or in open condition and he did not remember whether the seal used on the packets was an official seal 208 C.C.No. 33942/2011 since 12 years have already passed. Even he did not know as to who has arranged for articles having similarity to the seized articles for the purposes of identification and the identification proceedings were completed in a single day. The Tahsildar even after looking at the memo was unable to say as to how many articles of each kind were mixed up with articles to be identified and whether similar articles were new or old, used or unused, etc. None of the precaution that ought to have been taken to ensure fair identification was ever taken and no weight can be attached to the evidence of identification of property.
296. In view above decision, none of the precaution that ought to have been taken to ensure fair identification was ever taken and no weight can be attached to the evidence of identification of property. Instant case, as discussed above, the materials in the two containers were seized under mahazar at the premises of M/s Tirupati Exports by the DRI officers in the presence of accused and independent witnesses and the seized materials handed over to the accused for safe custody under Supratnama. Hence, the facts of the above decision and facts of the case on hand are different. Therefore, the above decision is not applicable to the facts of the case on hand.
209 C.C.No. 33942/2011297. The Ld. Counsel for accused has relied upon a decision reported in (1980) 3 Supreme Court Cases 110, in between Abdulla Mohammed Pagarkar Vs. State (Union Territory of Goa, Daman and Diu), wherein Hon'ble Supreme Court has held - 19. Now this is hardly a proper approach to the requirements of proof in relation to a criminal charge. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the State to bring out, beyond all reasonable doubt, that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the government. It is true that the total number of labourers working on a single day has been put by the prosecution witnesses mentioned above at 200 or less, while according to the summaries appended to the bills it varied on an average from 370 to 756. But then is it safe to rely on the mere impression of the prosecution witnesses, testified too long after the work had been executed, about the actual number of labourers employed from time to time? The answer must obviously be in the negative and the justification for this answer is furnished by the variation in the number of labour employed from witness to witness.
210 C.C.No. 33942/2011298. In view above decision, the onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. Instant case, as discussed above, the prosecution has proved all the ingredients of the alleged offences against the accused including the manner of occurrence that the accused has mis-declared the quantity of the goods and its value in the export documents in respect to 2 shipping bills and fraudulently availed duty drawback amount in respect to one shipping bill beyond all reasonable doubt. Hence, the facts of the above decision and facts of the case on hand are different. Therefore, the above decision is not applicable to the facts of the case on hand.
299. Thus, on going through the entire oral and documentary evidence and materials placed before this Court meticulously, this Court is of the considered view that the prosecution has established the necessary ingredients of the offence punishable u/Sec.420 and 511 r/w 420 of IPC and Sec.132 and 135 of Customs Act, 1962 as against the accused person beyond all reasonable doubt. The evidence on record clinchingly establish the commission of offence punishable u/Sec.420 of IPC and Sec.132 and 135 of Customs Act, 1962 in the matter of mis-declaration of quantity in the export documents in respect to shipping bill No.2101235 and availing of duty 211 C.C.No. 33942/2011 drawback amount of Rs.8,56,344/-. The evidence on record clinchingly establish the commission of offence punishable u/Sec.511 r/w 420 of IPC in the matter of mis-declaration of quantity in the export documents in respect to shipping bill No.2101554 and attempting to avail of duty drawback amount of Rs.8,54,856/-. The evidence on record clearly established the dishonest intention on the part of accused at the vary inception from the stage of submitting the ARE-1 No.1 and 2 documents to the Central Excise office for the inspection of consignments in two containers in respect to shipping bills No.2101235 and 2101554 both dated 27.05.2009 under duty drawback scheme. In this regard, the evidence on record established clear circumstances against the accused person forming complete chain of circumstances which is consistent to prove the guilt of the accused person. Therefore, this Court is of the considered view that, the prosecution has proved Point No.1 to 4 beyond all reasonable doubt as against the accused person. Accordingly, I answer Point No.1 to 4 in the affirmative.
300. Point No.5: It is the specific case of the prosecution that on 10.06.2009 the accused being the Proprietor of M/s Tirupati Exports intentionally made preparation to export the goods under two Invoices No.003 212 C.C.No. 33942/2011 dated: 03.06.2009 and No.004 dated: 03.06.2009 in contravention of the provisions of the Customs Act, 1962 and thereby committed the offence punishable U/s.135A of the Customs Act, 1962.
301. Section. 135A of Customs Act 1962 reads as under:
135A. Preparation.--If a person makes preparation to export any goods in contravention of the provisions of this Act, and from the circumstances of the case it may be reasonably inferred that if not prevented by circumstances independent of his will, he is determined to carry out his intention to commit the offence, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
302. In view of the above provision of law, if a person makes preparation to export any goods in contravention of the provisions of Customs Act, 1962 and from the circumstances of the case it may be reasonably inferred that if not prevented by circumstances independent of his will, he is determined to carry out his intention to commit the offence, he shall be punished.
303. As per the prosecution case, the accused had approached the Superintendent of Central Excise, Kanakapura Road Range -1, Bengaluru on 10.06.2009 213 C.C.No. 33942/2011 requesting for inspection of factory stuffed bought out non duty paid 100% cotton knitted men's T- Shirts to Ankita Trading FZE, UAE under duty drawback scheme with Tuticorin as Port of loading and Jebal Ali in UAE as port of discharge and submitted Export Invoice No.003/2009-10 and 004/2009-10 both dated: 03.06.2009, packing lists, applications for removal (ARE-1) bearing No.3 and 4, both dated: 10.06.2009 along with his request letter dated:
10.06.2009. Even before the examination of export goods could be undertaken by the officers of Central Excise, Kanakapura Road, Range-1, Bengaluru, a team of DRI Bengaluru led by Sri.M.R.Chandrashekar, Sr.Intelligence Officer, DRI, intercepted, examined and seized the export consignments.
304. P.W29 Sri.M.R.Chandrashekar, SIO, DRI deposed before the Court that he has drawn the mahazar on 10.06.2009 from 18.00 hours to 11.06.2009 at 16.00 hours and prepared the mahazar at the premises of M/s Tirupati Exports. He further states that he was instructed by the Assistant Director of the DRI, Bengaluru for conducting of verification search of the containers which were loaded and about to be sealed by the Central Excise Officers and he reached the premises along with his officers and two independent witnesses and they took the signatures of independent witnesses on the search 214 C.C.No. 33942/2011 warrant to witness the proceedings. He further stated that when they proceeded near the premises of the M/s Tirupati Exports, they found two 20 ft. containers which were loaded and had cartons and no space to load any further goods and one person identified himself as Milap Jain and informed that he is the Proprietor of M/s Tirupati Exports and the export documents have been submitted to the jurisdictional Central Excise office for department supervision of sealing and at that moment Sri D.Raghuram, Inspector and Sri M.Sampath Kumar, Inspector arrived and informed that their Superintendent Jyothi Chitgupi is on her way for supervision and sealing and in few minutes, Jyothi Chitgupi arrived with documents which were requested to be handed over for examination of containers.
305. P.W.29 further states that they went to premises of M/s Tirupati Exports to verify the two godowns which were empty and the containers were kept in front of the godowns and he informed the accused for conducting the examination of the cargo for which he agreed. He further states that they unloaded the cargo and placed the cartons one by one in the godown in respect of each containers separately. He further states that on verification of documents with respect to number of boxes, it was found that there was variation in the declared 215 C.C.No. 33942/2011 number of cartons which were present in the container and number of cartons were less as declared in the export documents. They found 306 cartons out of the same, about 130 cartons were empty in the first container and as per the export documents, 399 cartons were declared. He further states that upon opening each of the cartons and verifying the contents, they found that totally about 3000 ready made T Shirts, but the total number of ready made garments declared in the documents were about 27,000 pieces and they found shortage of export goods and prepared the Annexure-1 by showing the number of T Shirts in the each cartons in the first container.
306. P.W.29 further states that they started to verify the cartons in the second container and in the export documents 450 cartons were declared and number of cartons available in the said container is around 325 cartons, out of which around 80 cartons were empty. The quantity which found were much less than the quantity declared in the export documents and they prepared the Annexure-II by showing the number of T Shirts in each cartons in the second container and they drawn the representative samples from each of the containers and placed in separate carton boxes and sealed them and the goods were handed over to accused through Supratnama for safe custody on 11.06.2009. He further states that he 216 C.C.No. 33942/2011 prepared Ex.P.41 mahazar and Annexure No.1 and signed the same.
307. P.W.29 was subjected to cross examination by the learned counsel for the accused wherein he states that he has not obtained any such warrant from the Court to search the premises of M/s Tirupati Exports.
308. Section 105 of Customs Act 1962 speaks that if the Assistant Commissioner of Customs, or in any area adjoining the land frontier or the Coast of India an officer of Customs specially empower by name in this behalf by the Board, has reasons to believe that any goods liable to consification, or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act, or secreted in any place, he may authorise any officer of Customs to search or may himself search for such goods, documents or things. Instant case, search was conducted as per the instructions of Assistant Director of DRI, Bengaluru and in view of any provision of law, the Assistant Commissioner of Customs may authorise any officer of Customs to search the goods, documents or things. Hence, search warrant from the Court is not necessary under the Customs Act.
309. In the cross-examination of P.W.29, he admits that the consignments not yet exported and Sri 217 C.C.No. 33942/2011 D.Raghuram was present at the godown and Smt.Jyothi Chitagupi and Sri Raghuram handled the consignment which was under the process of export. P.W.29 further states that the documents were available in the hands of Smt.Jyothi Chitagupi. He further states that the annexures have been prepared by the officers who have verified the boxes in his presence and he has not personally counted materials available in each boxes. Hence nothing has been elicited in his cross-examination, to discredit his version.
310. C.W.42/P.W.26 Sri B.G.Nandakumar, the then Sr. Intelligence Officer in DRI, deposed that on 10.06.2009, he assisted to Sri M.R.Chandrashekar, Sr. Intelligence Officer in drawing mahazar at the premises of the Tirupati Exports and he, Sri Anand Kurup, I.O. and Sri Rakesh V. Giri I.O. were went to the premises of M/s Tirupati Exports around 6.00 pm and Sri M.R.Chandrashekar along with mahazar witnesses also joined them at the premises of M/s Tirupati Exports and accused, Sri Raghuram and Sampath Kumar were present there and thereafter Smt.Jyoti Chitagupi also arrived and M.R.Chandrashekar inquired about the Export consignment and asked for document for which accused stated that the documents were submitted to Central Excise Office for supervision of export clearance and near 218 C.C.No. 33942/2011 the premises, two containers were loaded with consignment. He further states that on inquiry, the accused informed that the consignment was already loaded due to urgency and thereafter goods were offloaded from the containers and cartons boxes loaded in the containers did not have any serial numbers. He further states that on examination of first container, it is noticed that 399 boxes were declared in the documents, but only 306 boxes were available and out of the same, 139 boxes were found empty and remaining boxes contained various garments. He further states that on examination of second container, it is noticed that 452 boxes were declared in the documents, but only 329 boxes were available and out of the same, 82 boxes were found empty and remaining boxes contained various garments. He further states that each of the cartons boxes were verified and list was prepared as annexure-1 & 2 to the mahazar and since the declared quantity and available goods did not match, the entire consignment was seized by the DRI officers vide mahazar dated: 10.06.2009 and consignment seized were handed over to accused under Supratanama due to non availability of space in DRI office.
311. P.W.26 was subjected to cross-examination by the learned counsel wherein he states that the consignment loaded in two containers at the godown 219 C.C.No. 33942/2011 premises of M/s Tirupati Exports and it was not sealed and no materials available in the said godown premises and outside. He further states that he unloaded the boxes from the container and opened the boxes and counted the garments available in few of the boxes and the employees also helped them in unloading the boxes and the signature of employees are not taken since the signatures of officers, independent witnesses and owner of the consignment were taken, Further he admitted that when they were visited the godown premises, at the time D.Raghuram and Sampath Kumar were not physically examined the goods and not given physical examination report. Further he admits that duty drawback cannot be claimed without export. He further states that the mahazar was conducted on 10.06.2009 at 6.00 pm to 6.00 pm on 11.06.2009 and independent witnesses were present from the beginning to end of the mahazar. Hence nothing has been elicited in his cross-examination, to discredit his version.
312. P.W.6 Sri Jothi Bas, Manager of Mercantile Shipping Services at Tuticorin deposed that they have filed two shipping bills during the June 2009, however Tirupati Exports did not send the cargo for export and he came to know that two containers were intercepted by DRI officers for the reason that there was some illegality in the matter 220 C.C.No. 33942/2011 of export.
313. P.W.7 Sri Srinivasan in his evidence deposed that he sent two vacant containers to Bengaluru, but he did not receive any garments and later he came to know that these containers containing the garments were intercepted by the DRI, Officers Bengaluru.
314. C.W.43 Sri S.Muralidhar examined as P.W.37 and he deposed that he was the witness to the proceedings conducted by CBI in the year 2009 at godown situated at Chunchanaghatta, Kanakapura Road, Bengaluru and his friend who is the husband of Smt.Jyothi Chitagupi requested him to go to said place and he saw two containers in front of the godown of M/s Tirupati Exports and he reached the said place in the evening and on the next day they left the place after completion Ex.P.41 mahazar. He further states that all the boxes in the container were removed and placed in the godown and opened one by one and some of the boxes were empty and ready made clothes were filled in some boxes and when he reached there, some Customs officers were present.
315. P.W.37 was subjected to cross-examination by the learned counsel for accused, wherein he states that there is 10 k.m. distance from his house to Tirupati 221 C.C.No. 33942/2011 Exports and Smt. Jyothi Chitagupi is the wife of his colleague. He admits that he has not personally counted the materials in the boxes. He further states that boxes examined in his presence and boxes were inside the container and Central Excise Officers were also present and no one issued written notice to him to attend as panch witness. He further states that he went along with the husband of Smt.Jyothi Chitagupi as he received call from her. He further states that he has not dictated to write Ex.P.41, but he read over the same and signed on the request of Customs officers. He further states that C.W.44 Sri Prashanth is also his friend and Sri Dheerendra. He further states that accused was present at the godown premises on that day.
316. C.W.44 Sri N.G.Prashanth examined as P.W.38 and he deposed that he was the witness to the proceedings conducted by CBI in the year 2009 at godown situated at Chunchanaghatta, Kanakapura Road, Bengaluru and his friend who is the husband of Smt.Jyothi Chitagupi requested him to go to said place and he saw two containers in.front of the godown of M/s Tirupati Exports and he reached the said place in the evening on 10.06.2009 and on the next day they left the place after completion Ex.P41 mahazar. He further states that all the boxes in the container were removed and placed in the 222 C.C.No. 33942/2011 godown and opened one by one and some of the boxes were empty and ready made clothes were filled in some boxes and when he reached there, some Customs officers were present.
317. P.W.38 was subjected to cross-examination by the learned counsel for accused, wherein he states that there is 7 to 8 k.m. distance from his house to Tirupati Exports and Smt. Jyothi Chitagupi is the wife of his colleague. He admits that he has not personally counted the materials in the boxes. He further states that boxes examined by the officers in his presence and boxes were inside the container and Central Excise Officers were also present and no one issued written notice to him to attend as panch witness. He further states that he went along with the husband of Smt. Jyothi Chitagupi as he received call from her. He further states that he has not dictated to write Ex.P41, but he read over the same and signed on the request of Customs officers. He further states that CW43 Sri Muralidhar is also his friend and Sri Dheerendra. He further states that accused was present at the godown premises on that day.
318. On perusal of the evidence of P.W.37 and 38 the independent panch witnesses, nothing has been elicited in their cross-examination to discredit their evidence. It is 223 C.C.No. 33942/2011 elicited from the cross-examination of P.W.37 and 38 that they are the colleagues and friends of Sri.Dheerendra who is the husband of Smt. Jyothi Chitagupi, Superintendent of Central Excise. Both witnesses specifically states that they saw two containers in front of the godown of Tirupati Exports and the boxes in the containers were removed and placed in the godown and opened one by one and some boxes were empty and ready made clothes were filled in some boxes and at the time of conducting mahazar, the Customs officers and Central Excise Officers and accused were present and in their presence boxes were examined by the officers and mahazar has been drawn and they read over the same and signed.
319. Ex.P.41 is the Certified copy of the mahazar dated 10.06.2009 and 11.06.2009. It reveals that P.W.29 Sri. M. R. Chandrashekar has conducted the search at the premises of M/s. Tirupati Exports, Chunchanaghatta Road, Konanakunte Post, Bengaluru on 10.06.2009 at about 6.00 p.m., along with DRI Officers and 2 independent witnesses. Further, it is stated in the mahazar that the accused and Sri.D.Raghuram and Sri. M. Sampath Kumar, Inspectors of Central Excise were also present and subsequently the Superintendent of Central Excise by name Smt. Jyothi S. Chitagupi was also arrived and she handed over the export documents raised by M/s.
224 C.C.No. 33942/2011Tirupati Exports for export of the goods and thereafter P.W.29 and his team, Central Excise Superintendent, Inspectors and accused and independent witnesses were inspected the premises of M/s. Tirupati Exports and the carton boxes of the container No.CRXU 2031190 loaded in truck No.TN-09-E-2759 were unloaded and arranged in the godown of Tirupati Exports and on verification it is noticed that totally 306 boxes were loaded in to the container as against 399 carton boxes declared in ARE-1 No.3/10.06.2009, Invoice No.003/09-10 dated 03-06- 2009 and the boxes were not assigned with any serial numbers and out of 306 boxes, 100 boxes were filled with PP woven sack fabric and all the boxes were opened and verified for the contents therein and found that out of 306 boxes, 139 boxes were empty and 167 boxes container T- Shirts of various sizes which are as detailed in Annexure - 1 to the mahazar and the boxes were later re-sealed. It is further stated in the mahazar that the carton boxes loaded into the 2nd container bearing No.NESU 3523162 loaded in truck No.TAC-6326 were also unloaded into the godown and on verification, it is noticed that totally 329 carton boxes were loaded in the container as against 452 boxes declared in ARE-1 No.4/10.06.2009, Invoice No.004/03.06.2009 and the said boxes were not assigned with any serial number and out of 329 boxes, 82 boxes were empty and remaining 247 boxes were wrapped with 225 C.C.No. 33942/2011 PP woven sacks and were containing T-shirts of various sizes which are as detailed in Annexure - 2 to the mahazar. It is further stated in the mahazar that on verification of the export consignment, it is observed that the actual number of packages and quantity are not tallying with the declaration made by M/s. Tirupati Exports in ARE - 1 /invoices and the discrepancies noticed that number of pieces declared in respect to ARE- 1 No.3/10.06.2009 is 27864 and number of pieces found is 3792 and number of pieces declared in respect to ARE- 1 No.4/10.06.2009 is 27720 and number of pieces found is 7584.
320. Ex.P.41 reveals that the mahazar has been drawn on 10-06-2009 at 6.00 p.m., to 11-06-2009 at 4.00 p.m., in the presence of PW37 and 38 and accused. The accused also endorsed on the mahazar that he was present during the entire proceedings and signed. Further, P.W.37 and 38 also signed the said mahazar. Further, Smt. Jyothi, Superintendent endorsed that she was present during the entire mahazar proceedings and signed. Further, the Inspector D.Raghuram and Sri. Sampath Kumar also signed the mahazar. Further the details of the cartons in the first container mentioned in Annexure - 1 and the P.W.37 and 38 and accused were signed on each page of the said Annexure. Further, the 226 C.C.No. 33942/2011 details of goods in 2nd container also mentioned in Annexure - 2 and P.W.37 and 38 along with accused signed on each page of the said Annexure.
321. The copy of the Supratnama also marked along with Ex.P.41 which reveals that the accused being the Proprietor of Tirupati Exports has acknowledge the receipt of seized goods by the officers of DRI, Bengaluru under mahazar dated 11.06.2009 drawn at godown of Tirupati Exports and he undertakes to keep the seized goods in his custody. The said document signed by the accused and P.W.37 and 38.
322. In view of Ex.P.41 mahazar, Annexure - 1 & 2 and Supratnama the P.W.29 seized the goods in 2 containers in respect to invoices number 003/2009-10 dated 03.06.2009 and 004/2009-10 dated 03.06.2009 and noticed the discrepancies in the export documents and goods found in the containers and further the said seized goods handed over to the accused under Supratnama.
323. The learned counsel for accused has argued that P.W.37 and 38 are the interested witnesses who are friends of husband of Smt. Jyoti Chitagupi Superintendent Central Excise, hence there evidence cannot be believable. It is pertinent to note that, merely 227 C.C.No. 33942/2011 because the P.W.37 and 38 are friends of the husband of the Smt. Jyothi Chitagupi, Superintendent of Central Excise, the evidence of P.W.37 and 38 cannot be discarded. Ex.P.48 FIR reveals that the case lodged on 29.10.2010 on source of information by the CBI, wherein Smt. Jyothi S Chitagupi shown as accused No.3. It is pertinent to note that, the DRI officers intercepted, examined and seized the export consignments on 10.06.2009, hence at that time no case was registered against Smt. Jyothi S. Chitagupi. Further, on that day she is on the way to examine the export consignments at the premises of Tirupati Exports. Therefore, Smt. Jyothi S Chitagupi or P.W.37 and P.W.38 were not interested persons at the time of DRI intercepted, examined and seized the export consignments. Hence, there is no substance in the contention of the Ld. Counsel for the accused that P.W.37 and 38 are interested witnesses and their evidence cannot be reliable.
324. Further, the learned counsel for accused has relied upon a decision reported in (2014) 14 Supreme Court Cases 22, in between Deny Bora Vs. State of Assam, wherein Hon'ble Supreme Court has held that:
From the aforesaid authorities, it is quite vivid that non- examination of material witnesses would not always create a dent in the prosecution case. However, as has 228 C.C.No. 33942/2011 been held in Gian Chand the charge of withholding a material witness form the Court leveled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find out whether the witnesses were available for being examined in the Court and were yet withheld by the prosecution. That apart, the court has first to assess the trustworthiness of the evidence adduced and available on record. If the Court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. Another aspect which is required to be seen whether such witness or witnesses are the only competent witnesses who could have been fully capable of explaining correctly the factual situation.
325. In view of the above decision, non examination of material witnesses would not always create a dent in the prosecution case. Instant case, the prosecution has examined P.W.29 who conducted the search and seizure at Tirupati Exports on 10.06.2011 and P.W.26 who assisted the P.W.29 and the independent witnesses P.W.37 and 38. Admittedly, the Superintendent and Inspectors of the Central Excise Department were not examined before the Court, but their statements recorded u/Sec.108 of 229 C.C.No. 33942/2011 Customs Act, 1962 were marked before the court as per Ex.P.44, 45 and 33 wherein they are stated about mahazar conducted by the DRI officers on 10.06.2009 at the premises of Tirupati Exports. Hence, facts of the above decision and facts of the case on hand are different, hence the above decision is not applicable to the case on hand.
326. The learned counsel for the accused has relied upon decision reported in (2024) 10 SCC 489 in between Mir Mustafa Ali Hasmi Vs. The State of A.P., wherein Hon'ble Supreme Court has held that it is relevant to mention here that PW-2 was the only witness associated by the Dy.SP/TLO(PW-10) to accompany the complainant(PW1) for witnessing the transaction of demand and acceptance of bribe. Evidently thus, PW2 was kept as a shadow witness in the case. During the course of trial, the complainant(PW-1) and PW-2 both admitted that they were close friends. The complainant(PW-1) and PW-2 being close friends, it can safely be assumed that PW-2 was an interested witness. Hence, it is also manifested that TLO/DySP(PW-10) did not make any effort whatsoever to associate an independent person to act as a shadow witness in the trap proceedings. It is recorded in the memorandum of the pre-trap proceedings(Exhibit P-4) that it was the DySP(PW-10) who summoned the PW-2 and asked him to act as a shadow witness to oversee and 230 C.C.No. 33942/2011 overhear the transaction of acceptance of illegal gratification. However, this fact is totally contradicted by the version as set out in the evidence of the complainant(PW-1) and PW-2. Both categorically stated that it was the complainant(PW-1) who asked PW-2 to accompany him during the trap proceedings scheduled to take place on the morning of 23rd January, 2003. In normal course, before proceeding to the state of trap, it was incumbent upon the Dy.S.P. (.PW.10) to get an independent verification done of the alleged demand which fact assumes prominence considering the circumstance that the accompanying shadow witness, Ramesh Naidu (PW-2) is a close friend of the complainant (PW-1) who himself bore a grudge against the appellant(AO1) on account of the fine of Rs.50,000/- imposed on the saw- mill.
327. In the above decision, the shadow witness is a close friend of complainant who himself bore a grudge against the accused on account of fine imposed on him. Instant case, it is elicited in the cross examination of P.W.37 and 38 that they are the friends of husband of Smt. Jyothi S. Chitagupi, Superintendent Central Excise. Ex.P.48 FIR reveals that the case lodged on 29.10.2010 on source of information by the CBI, wherein Smt. Jyothi S. Chitagupi shown as accused No.3. It is pertinent to note 231 C.C.No. 33942/2011 that the DRI officers intercepted, examined and seized the export consignments on 10.06.2009, hence at that time of search and seizure, no case registered against Smt. Jyothi S. Chitagupi. Further, on that day she is on the way to examine the export consignments at the premises of Tirupati Exports. Therefore, Smt. Jyothi S. Chitagupi was not interested person at the time of DRI intercepted, examined and seized the export consignments. Though, the P.W.37 and 38 are friends of the husband of the Smt. Jyothi S. Chitagupi, but nothing has been elicited in the cross examination of P.W.37 and 38 to show that there was grudge against the accused. Hence, facts of the above decision and the facts of the case on hand are different, therefore the above decision is not applicable to the case on hand.
328. The learned counsel for the accused has relied upon decision in Crl.A.No.693 of 2008, in between K.P.Kolanthai Vs. State by Inspector of Police Anti Corruption Wing, Dharmapuri, wherein the Hon'ble High Court of Madras held that as per the evidence of P.W.2, the initial demand was said to have been made by the Appellant/accused in the presence of P.W.7, Rani, Bill Collector and that only P.W.2 and P.W.7 were aware of the initial demand. Whereas, strangely, P.W.7 had stated that she was not aware of what transpired between P.W.2 and 232 C.C.No. 33942/2011 the Appellant/accused. P.W.2 and P.W.7 are neighbours and known to each other. Whereas P.W.7 for the best reasons known to her, had deposed that she did not know P.W.2 and she never saw P.W.2. The complainant, P.W.2, in the case of trap, is the interested witness on the side of the prosecution and thereby, his evidence should be carefully scrutinized and unless his evidence is corroborated by cogent evidence, the case of the prosecution should not be accepted. In this case, the evidence of P.W.2 is not properly corroborated and as such, the evidence of P.W.2 does not inspire confidence and the prosecution has to prove the demand, acceptance and recovery of the tainted money, by cogent evidence. When there is suspicion with regard to the evidence and where there is no corroboration, the theory of demand and acceptance as projected by the prosecution cannot be sustained.
329. In view of the above decision, when there is suspicion with regard to the evidence and where there is no corroboration, the theory of demand and acceptance as projected by the prosecution cannot be sustained. Instant case, P.W.29 - SIO of DRI who intercepted, examined and seized the export consignments deposed before the court in respect to mis-declaration of quantity in export documents and actually found in 2 containers. P.W.26 - SIO DRI also deposed about mis-declaration of quantity in 233 C.C.No. 33942/2011 export documents and actually found in 2 containers. Further, P.W.37 and 38 who are independent witnesses also supported the case of the prosecution. Further, nothing has been elicited in the cross examination of P.W.26, 29, 37 and 38 that there was any enmity between accused and these witnesses or they are the interested witnesses. Further mahazar has been drawn with detailed Annexures and handed over the seized goods to the accused under Supratnama. Hence, the evidence of P.W.26, 29, 37 and 38 are corroborated by cogent evidence. Hence, facts of the above decision and the facts of the case on hand are different, therefore the above decision is not applicable to the case on hand.
330. In view of the discussion made above, this Court is of the view that the evidence of P.W.26, 29, 37 and 38 is trustworthy and believable. The accused in his statement u/s 313(5) of Cr.P.C. at para 12 contended that due to malafide investigation and harassment to genuine business people in spite of genuine business transaction this case has been lodged against him. Nothing has been placed before the court to show that the DRI officers have conducted the search and seizure only to harass the accused person who is doing genuine business transaction. Therefore, there is no substance in the contention of the accused. Hence, this court is of the 234 C.C.No. 33942/2011 considered view that, the prosecution has proved the Ex.P.41 mahazar.
331. Sec.138A of Customs Act 1962 reads as under:
138A. Presumption of culpable mental state.--(1) In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.--In this section, ―culpable mental state includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
332. In view of the above provision, the Court shall presume the existence of culpable mental state on the part of the accused in any prosecution for offence under the Customs Act but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
235 C.C.No. 33942/2011333. Instant case, the accused has submitted the ARE-1 No.3/10.06.2009, invoice No.003/2009-10 dated 03.06.2009 and ARE-1 No.4/10.06.2009, invoice No.004/2009-10 dated 03.06.2009 along with request letter dated 10.06.2009 to the Central Excise Officer for inspection of consignments in 2 containers and before the examination of export goods be undertaken by the officers of Central Excise, a team of DRI intercepted, examined and seized the export consignments on 10.06.2009 at the premises of M/s. Tirupati Exports. The P.W.29 and 26 DRI officers specifically deposed in their evidence that 2 containers were loaded with the consignment before examination of the Central Excise Officers. P.W.37 and 38 independent witnesses also deposed that all the boxes in the 2 containers removed and placed in the godown. It shows that the carton boxes already loaded in the 2 containers before examination of consignments by the Central Excise Officers.
334. In Ex.P.34 statement of the accused recorded on 12.06.2009 u/Sec.108 of Customs Act, wherein he states that the officers of DRI visited his godown premises at No.27, Industrial Estate, Chunchanaghatta Main Road, Konanakunte Post on 10.06.2009 and carried out search and seizure operations which are narrated in detail in the mahazar dated 11.06.2009 drawn at the premises and he 236 C.C.No. 33942/2011 was present during the proceedings of the mahazar and agree with the contents mentioned therein. Further, he states that on perusal of mahazar dated 11.06.2009 and found it to be correct and he agreed that only 306 cartons were loaded in container No.CRXU-2031190 as against the declared 399 cartons and only 329 cartons were loaded in container number NESU-3523162 as against the declared 452 cartons and out of which 139 and 82 empty cartons respectively were loaded in the 2 containers. Further, he states that the reasons for the discrepancy in the export quantity was for availing excess draw back from customs for the export made by him than the amount which he would otherwise be eligible if he had declared the correct quantity of goods in the export invoices and other export related documents and he accept that that was done intentionally with a view to avail more drawback amount.
335. As discussed in Point No.1 to 4, Ex.P.34 to 36 the statements of the accused recorded u/Sec.108 of Customs Act are admissible in evidence as it was voluntarily one and without any coercion, undue influence. Under such circumstances, this Court is of the view that, the prosecution has proved that the accused made preparation to export of goods in contravention of the provisions of Customs Act i.e., Sec.132 and 135 (1) (d) of Customs Act and from the circumstances of the case 237 C.C.No. 33942/2011 inferred that if it is not prevented by the officers of the DRI, the accused is determined to carry out his intention to commit the offence.
336. The evidence on record clinchingly establish the commission of offence punishable u/Sec.135 A of the Customs Act. The evidence on record clearly establish the intention of the accused in making preparation to export the goods under duty drawback scheme in contravention of the provisions of the Customs Act. In this regard, the evidence on record established clear circumstances against the accused person forming complete chain of circumstances which is consistent to prove the guilt of the accused person. Therefore, this Court is of the considered view that, the prosecution has proved Point No.5 beyond all reasonable doubt as against the accused person. Accordingly, I answer Point No.5 in the affirmative.
337. Point No.6: For the reasons discussed in connection with point No.1 to 5 and findings given thereon, this Court proceed to pass the following -
ORDER Acting under Section 248 (2) of Cr.P.C.
1973, accused is convicted for the offence punishable under Section 420 and 511 r/w 238 C.C.No. 33942/2011 420 of Indian Penal Code and Section 132, 135, 135 A of the Customs Act, 1962.
The Bail bonds of the accused and his surety stand canceled.
To hear regarding Sentence.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 30th day of July, 2025) [L.J. BHAVANI] XVII ADDL.CHIEF JUDICIAL MAGISTRATE, BANGALORE.
ORDERS REGARDING SENTENCE In this case, the accused is convicted for the offence punishable u/Sec.420 and 511 r/w Sec.420 of IPC and Section 132, 135 and 135 A of the Customs Act, 1962.
2. Heard the accused, his counsel and the Ld. Public Prosecutor regarding sentence.
3. The Ld. Counsel for accused has humbly submitted that, the accused is aged about 63 years and his wife dead and he undergone heart surgery and he is a diabetic patient. Further, it is submitted that, mother of 239 C.C.No. 33942/2011 the accused is 84 years old and she is suffering from cancer and he has to take care of her and there is no business since 2009 and he sustained loss. Further, it submitted that, the accused is regular before the Court through out proceedings and he co-operated with the investigation and not violated conditions of bail order. Further, it is submitted the offences u/Sec.132, 135 and 135 A of the Customs Act, 1962 are compoundable in nature and the provisions of Probation of Offenders Act may be applicable. It is further stated that the bank account of the accused was frozen as per the instruction of DRI on 11.06.2009 and he has not withdrawn or utilize the duty drawback amount of Rs.8,56,344/- which was credited to his account in respect to shipping bill No.2101235 dated 27.05.2009. Accordingly, prayed for lenient view in favour of the accused in the matter of awarding sentence.
4. The accused who is before the Court is also submitted in the way as submitted by his Ld. Counsel and prayed for lenient approach in his favour.
5. Per contra, the Ld. Public Prosecutor has submitted that, the offences against the accused persons is proved beyond reasonable doubt and the Court has to consider the nature of the case and gravity of the offence 240 C.C.No. 33942/2011 committed by the accused and also its effect on the society. The loss sustained by the Customs Department. Accordingly, prayed for convicting the accused by imposing maximum sentence and fine permissible under law.
6. In the matter of imposing the sentence, Court has to hear the accused on sentence, consider the mitigating and aggravating circumstances, gravity of the offence, amount involved, the purpose of punishment being imposed, effect of the offence committed on the society and facts and circumstances of the case under which the offence took place etc. In the present case on hand, the accused dishonestly mis-declared the number of packages and number of pieces and its value in the export documents under duty drawback scheme covered under shipping bills No.2101235 and 2101554 both dated 27.05.2009 and fraudulently availed ineligible duty drawback amount of Rs.8,56,344/- and attempted to avail duty drawback amount of Rs.8,54,856/- and also made preparation to export the goods under 2 invoices in contravention of the provisions of Customs Act. The act of the accused is having effect on the public money. The mitigating circumstances expressed by the accused are that though the duty drawback amount of Rs.8,56,344/- credited to his account, but his account has been frozen 241 C.C.No. 33942/2011 by the DRI and he has not withdrawn the said amount. He is not convicted of any offence previously. Further, he is aged and suffering from serious health issues and undergone hear surgery and he is having 84 years old mother who is suffering from cancer and he has to take care of her. The aggravating circumstances expressed for the seriousness of the offence, its effect on the society.
7. The provisions of Probation of Offenders Act is not applicable to the present case on hand since it is a economic offence. Hence, this Court is declined to release the accused under the provisions of Probation of Offenders Act, 1958.
8. Section 420 of IPC provides for punishment for cheating and the said offence is punishable with imprisonment of either description for a term which may extend to seven years and also liable to pay fine.
9. Section 511 of IPC provides for punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment and the said offence is punishable with imprisonment of any description provided for the offence, for a term which may extend to one - half of the imprisonment for life or as the case may be one - half of the longest term of imprisonment provided for that offence or with such fine 242 C.C.No. 33942/2011 as is provided for the offence or with both where no express provision is made by the Cr.P.C. for the punishment of such attempt.
10. Section 132 of Customs Act provides for punishment for intentionally submitting of false declaration and false statement and false documents in the transaction of any business relating to the customs and the punishment provided for that offence is imprisonment for a term which may extend to two years or fine or with both.
11. Section 135 (1) (d) of Customs Act provides for punishment for fraudulently availing of or attempts to avail of drawback or any exception duty from provided under the Customs Act in connection with export of goods and the said offence is punishable with imprisonment for a term which may extend to three years or fine or with both under Section 135 (1) (ii) of Customs Act and in case of any offence relating to any goods the market price of which exceeds one crore of rupees or the evasion or attempted to evasion of duty exceeding fifty lakh rupees or fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d) if the amount of drawback or exemption from duty exceeds 30 lakhs rupees etc., then the punishment is with 243 C.C.No. 33942/2011 imprisonment for a term which may extend to seven years and fine under Section 135 (1) (i) of Customs Act. In the present case, the prosecution has proved that the accused fraudulently availed duty drawback amount of Rs.8,54,344/- which is less than thirty lakhs rupees. Hence, Section 135 (1) (ii) of Customs Act is applicable.
12. Section 135 A of Customs Act provides for punishment for preparation to export the goods in contravention of provisions of Customs Act and the said offence is punishable with imprisonment for a term which may extend to three years or fine or with both.
13. The Court has to consider the mitigating factors which are in favour of the accused and aggravating circumstances. There is no material placed to show that the accused is having any criminal antecedents. As submitted by the Ld. Counsel for the accused, it is noticed that, the accused is suffering from health issues and undergone heart surgery and he is having aged old mother who is suffering from cancer. He has appeared before the Court to face the trial of this case since 2011 for long years and the offence leveled against accused are punishable with capital imprisonment. However, the submission made by the Ld. Public Prosecutor is also to be taken into consideration. Hence, having considered the 244 C.C.No. 33942/2011 facts and circumstances of the case, nature and gravity of the offences, its effect on the society, the purpose of the punishment, aggravating and mitigating circumstances of the case, this Court proceed to pass the following ;
ORDER The accused is convicted for the offence punishable under Section 420 of IPC and he is sentenced to undergo simple imprisonment for a period of one year and shall also pay fine of Rs.20,000/- and in default of payment of fine amount, he shall undergo simple imprisonment for a period of three months.
The accused is convicted for the offence punishable under Section 511 r/w 420 of IPC and he is sentenced to undergo simple imprisonment for a period of six months and shall also pay fine of Rs.10,000/- and in default of payment of fine amount, he shall undergo simple imprisonment for a period of one month.
The accused is convicted for the offence punishable under Section 132 of Customs Act, 1962 and he is sentenced to undergo simple imprisonment for a period of three months and shall also pay fine of Rs.5,000/- and in default of payment of fine amount, he shall undergo simple imprisonment for a period of one month.
245 C.C.No. 33942/2011The accused is convicted for the offence punishable under Section 135 (1)
(ii) of Customs Act, 1962 and he is sentenced to undergo simple imprisonment for a period of three months and shall also pay fine of Rs.5,000/- and in default of payment of fine amount, he shall undergo simple imprisonment for a period of one month.
The accused is convicted for the offence punishable under Section 135 A of Customs Act, 1962 and he is sentenced to undergo simple imprisonment for a period of three months and shall also pay fine of Rs.5,000/- and in default of payment of fine amount, he shall undergo simple imprisonment for a period of one month.
The sentences ordered shall run concurrently.
Office to supply of the free copy of the judgment to the accused forthwith.
(Dictated to the Stenographer, directly on the computer, corrected, signed and then pronounced by me in the Open Court on this the 30th day of July, 2025) [L.J. BHAVANI] XVII ADDL.CHIEF JUDICIAL MAGISTRATE, BANGALORE.
246 C.C.No. 33942/2011ANNEXURE I. List of witnesses examined for the prosecution:
P.W.1 : Shazada Khurram Nazir
P.W.2 : V. Gopalakrishnan
P.W.3 : Smt. Shakuntala Naik
P.W.4 : M.D. Doraiswamy
P.W.5 : K. Dinesh Chakravarthy
P.W.6 : Jothi Bas
P.W.7 : Srinivasan
P.W.8 : M. Venkatesulu
P.W.9 : S. Vijayaraghavan
P.W.10 : T. Muthukumar
P.W.11 : S. Sundara Ganapathy
P.W.12 : R. Prakasha Babu
P.W.13 : Thanigal Kumaran
P.W.14 : E. Ramachandran
P.W.15 : Rajasekaran
P.W.16 : G. Somasundaram
P.W.17 : K. Mariappan
P.W.18 : G. Gunashekaran
P.W.19 : P. Selvaraj
P.W.20 : M. Dharmarajan
P.W.21 : Manimaran R.
P.W.22 : P. Senthil Kumar
P.W.23 : M. Kannan
P.W.24 : M.S. Rani
247 C.C.No. 33942/2011
P.W.25 : Dattakumar
P.W.26 : B.G.Nandakumar
P.W.27 : Mani Muthu
P.W.28 : Mukarram Eashaq
P.W.29 : M.R.Chandrashekar
P.W.30 : B.L.Narayana
P.W.31 : Prakash Dhage
P.W.32 : Smt. Aruna U.R.
P.W.33 : R. Mathi Selvan
P.W.34 : Chandrashekar J.
P.W.35 : Vittal Sujeer
P.W.36 : C. Rajendiran
P.W.37 : Muralidhar S.
P.W.38 : N.G. Prashanth
P.W.39 : S. Joseph
P.W.40 : K.Y.Guruprasad
II. List of witnesses examined for the defence :-
-NIL-
III. Documents exhibited on behalf of the prosecution:
Ex.P.1 : Account Opening Form along
with connected documents
Ex.P.2 : Statement of Account
Ex.P.2 (a) : Certificate u/Sec.2 A of
Banker's Book of Evidence
Act
Ex.P.3 : Certificate of Foreign inward
248 C.C.No. 33942/2011
remittance
Ex.P.4 : Letter dated 22.12.2010
Ex.P.5 : IEC File
Ex.P.5 (a) : IEC Certificate
Ex.P.6 : Original File
No.IV/7/229/2007-08
Ex.P.7 : File titled as FORM ARE -1
and connected documents
Ex.P.8 : Letter dated 11.07.2011
Ex.P.9 : Details of Drawback Sanction
Ex.P.10 : Show Cause Notice dated
21.06.2010
Ex.P.11 : EDI Screenshots
Ex.P.12 : Covering letter dated
12.07.2011
Ex.P.13 : Shipping bill No.2062306 and
relevant enclosures
Ex.P.14 : Shipping bill No.2062317and
relevant enclosures
Ex.P.15 : Shipping bill No.2074284 and
relevant enclosures
Ex.P.16 : Shipping bill No.2074285 and
relevant enclosures
Ex.P.17 : Shipping bill No.2028123 and
relevant enclosures
Ex.P.18 : Shipping bill No.2076953 and
relevant enclosures
Ex.P.19 : Shipping bill No.2076954 and
relevant enclosures
249 C.C.No. 33942/2011
Ex.P.20 : Shipping bill No.2060231 and
relevant enclosures
Ex.P.21 : Copies of shipping bills
No.2043522, 2042815,
2101235 and 2101554 and
relevant enclosures
Ex.P.22 : Shipping bill No.2068609 and
it relevant enclosures
Ex.P.23 : Shipping bill No.2068608 and
it relevant enclosures
Ex.P.24 : Attested copy of Mahazar
dated 27.06.2009
Ex.P.25 : Letter dated 15.12.2010
Ex.P.26 : Attested copy of the
statement of Jothi S.
Chitagupi,
Ex.P.27 : Attested copy of the
statement of Shankar Rao
Ex.P.28 : Attested copy of the
statement of C. Jayanthi
Ex.P.29 : Letter dated 15.12.2010 with
annexure
Ex.P.30 : Attested copy of statement of
D. Raghuram
Ex.P.31 : Attested copy of Supratnama
Ex.P.32 : Shipping bill No.2101554 and
2101235 and relevant
enclosures
Ex.P.33 : Statement of D. Raghuram
Ex.P.34 to 36 : Certified copies of Statements
of accused
Ex.P.37 : Letter dated 06.07.2009
Ex.P.38 : Mahazar dated 10.06.2009
250 C.C.No. 33942/2011
Ex.P.39 : Certified copy of mahazar
dated 10.06.2009
Ex.P.40 : Certified copy of mahazar
dated 11.06.2009
Ex.P.41 : Certified copy of mahazar
dated 10/11.06.2009
annexure I, annexure II and
Supratnama dated
11.06.2009
Ex.P.42 : Certified copy of Supratnama
dated 27.06.2009
Ex.P.43 : Letter dated 16.12.2010 and
11.07.2011 along with
statement of accounts and
certificate, account opening
form, NOC and connected
documents
Ex.P.44 : Statement of Jyothi S.
Chitagupi
Ex.P.45 : Statement of Shankar Rao
Ex.P.46 : Statement of C. Jayanthi
Ex.P.47 : Sanction Order
Ex.P.48 : FIR dated 29.10.2010
Ex.P.49 : Forwarding letter dated
13.12.2010
Ex.P.50 : Forwarding letter dated
21.01.2011
Ex.P.51 : Letter dated 15.02.2011
Ex.P.52 : Letter dated 01.03.2011
Ex.P.53 : File of containing Central
Excise registration certificate
and relevant documents.
Ex.P.54 : Letter dated 12.07.2011
251 C.C.No. 33942/2011
Ex.P.54 (A) : Duty Draw Back Details
IV. LIST OF DOCUMENTS EXHIBITED FOR DEFENCE:-
-NIL-
V. LIST OF MATERIAL OBJECTS MARKED FOR THE PROSECUTION:-
-NIL-
VI. LIST OF MATERIAL OBJECTS MARKED FOR THE DEFENCE:-
-NIL-
[BHAVANI L.J.] XVII ADDL.CHIEF JUDICIAL MAGISTRATE, BANGALORE.