Custom, Excise & Service Tax Tribunal
(I) Shri S. Suresh vs Cc (Air), Chennai on 29 September, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C /163/2002 & C/161/2002
(Arising out of Order-in-Original No.11/2002-Commr. (Air) dated 05.03.2002, passed by the Commissioner of Customs (Air), Chennai).
For approval and signature
Honble Shri P.G. CHACKO, Member (Judicial)
Honble Shri P. KARTHIKEYAN, Member (Technical)
___________________________________________________
1. Whether Press Reporters may be allowed to see the :
order for Publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether the Honble Member wishes to see the fair :
copy of the Order.
4. Whether order is to be circulated to the :
Departmental Authorities? ___________________________________________________
(i) Shri S. Suresh
(ii) M/s. Global Network Enterprises : Appellants
Vs.
CC (Air), Chennai : Respondent
Appearance None for Shri.Suresh Shri Chezhan, Adv., for Global Network Enterprises Shri M.K.A.K. Mohiddin, JDR, for the respondent CORAM Shri P.G.CHACKO, Member (Judicial) Shri P. KARTHIKEYAN, Member (Technical) Date of hearing : 26.09.08 & 29.09.08 Date of decision : 26.09.08 & 29.09.08 Final ORDER No._____________/2008 Per: P.KARTHIKEYAN M/s Global Networking Enterprises (GNE) and Shri.S.Suresh, proprietor of M/s. Asian Shipping Services have filed these appeals challenging the impugned order which confiscated an export consignment and imposed a penalty of Rs. 10,000/- on Shri. Suresh. When the appeal of Shri Suresh was called no one appeared representing him nor was there any request for adjournment. Therefore, we take up this appeal filed in the year 2002 for disposal. We had heard the parties on 26.09.08 when appeal No. C/161/2002 was taken up.
2. The facts of the case are that GNE filed five shipping bills under claim for drawback for export of 12500 pieces of rubber gaskets in January, 2002. The goods were described as Automobile Gaskets. Investigation pursuant to intelligence received by the departmental officers revealed that one Shri Suresh had procured rubber gaskets costing less than Rs. Three and presented 12500 pieces of them declaring the unit price as US $2.25 (equal to Rs. 107/-) with the intention of obtaining undue drawback of Rs. 15 per piece. In statements recorded from Shri Suresh, under Section 108 of the Customs Act, he deposed that he had been in the business of export of crabs to Singapore, garments and turmeric to Malasysia and garments to Colombo in the name of his firm Tirumala Traders. In 2001 he had started GNE in the name of one Shri. Kaviarasu. GNE exported several consignments of garments to Colombo. He had exported consignments of automobile gaskets of M/s. Gabon Trading Co. and M/s. Gambier Traders in September, 2001. He had organized purchase of rubber gaskets for Rs. 2.25 per piece and got them packed for Rs.1.50 per piece and arranged to file Shipping Bill with one M/s.Real Best Pvt. Ltd., Singapore as consignee. He got the Shipping Bill filed through Shri Anbu with the assistance of a licensed CHA Shri Kumar. He was aware of the offence involved. Shri Suresh admitted that the gaskets entered for export were made of natural rubber and were not automobile gaskets. He had misdeclared the goods as made of composite material to obtain All Industry Rate Drawback. Shri Anbu was found to be an employee of M/s. Asian Shipping Services run by Shri.Suresh. Shri.Anbu had, on his own admission knowingly participated in the offending transactions. Shri Anbu had also stated that Shri Suresh ran GNE in addition to Tirumala Traders. As the description and value of the export goods had been deliberately misdeclared in a drawback Shipping Bill, the Commissioner confiscated the 12500 pieces of gaskets entered for export under Section 113 (i) [ii] of the Customs Act, 1962. She also imposed the impugned penalty of Rs.10,000/- under Section 114 of the Customs Act, 1962 on Shri Suresh. The confiscated goods were allowed to be redeemed on payment of a fine of Rs.20,000/-.
3. In the appeal filed before us by Shri Suresh, it is contended that the impugned order did not establish that the appellant had abetted the commission of the offence. The authorities had not established that the appellant had admitted unauthorized export. There was no evidence that the appellant had acted in deliberate defiance of law. The Commissioner had relied on the statements of co-noticees to find the involvement of the appellant in the offending transactions. Penalty could not be imposed without establishing mens rea. The proceedings did not establish the offence of the appellants beyond reasonable doubt. Therefore, the penalty imposed on Shri.Suresh had to be set aside. On 26.09.08, appearing on behalf of GNE, the Ld. Counsel did not press the challenge to the confiscation raised in the appeal. He prays for leniency as regards fine on GNE.
4. The Ld. JDR submits that the appeal filed by GNE against the order of confiscation and redemption fine of Rs. 20,000/- did not advance any worthwhile ground. The impugned order deserved to be sustained as Shri Suresh was found to have been the person behind the attempt to fraudulently export the gaskets for obtaining undue drawback.
5. We have carefully considered the facts of the case. Statements obtained from Shri Kaviarasu indicated that GNE was owned by Shri Suresh and that Shri Kaviarasu was not aware of the activities of the firm and that its affairs were conducted of by Shri Suresh. The export documentation of the impugned goods had been got done by Shri Anbu who was an employee of Shri Suresh. The voluntary statements recorded from Shri Suresh under Section 108 of the Customs Act established beyond doubt that he had indulged in export of gaskets of natural rubber in the guise of automobile gaskets of composite material and had misdeclared its value by more than 20 times. None of the statements including the incriminating statements of Shri Suresh has been retracted. Therefore, these statements were admissible evidence in adjudicating the offence. The Commissioner had confiscated the consignment of 12500 pieces of gaskets for misdeclaration of value and description under Section 113 (i) & [ii] of the Customs Act. We find that the Commissioners order is passed on reliable evidence. We do not find any reason to interfere with the same. Accordingly, the appeals filed by GNE and Shri S. Suresh are dismissed as devoid of merit.
(Operative part of the orders in appeals C/161/02 and C/163/02
pronounced in the open Court on 26.09.08 and 29.09.08 respectively)
(P. KARTHIKEYAN) (P.G. CHACKO)
MEMBER (T) MEMBER (J)
BB
??
??
??
??
2