Custom, Excise & Service Tax Tribunal
Commisssioner Of Customs(Export), ... vs Shri. B.S. Chauhan on 5 August, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/660, 664, 665/11, CO/175/11 [Arising out of orders in original No. 40/2011 dated 30/4/2011, No. 41/2011 dated 28/4/2011 and No. 42/2011 dated 29/4/2011passed by the Commissioner of Customs(Export), JNCH, Nhava Sheva] For approval and signature: Honble Mr. P.S. Pruthi, Member(Technical) Honble Mr Ramesh Nair, Member(Judicial) =======================================================
1. Whether Press Reporters may be allowed to see : No
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 Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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Commisssioner of Customs(Export), JNCH, Nhava Sheva
:
Appellants
VS
Shri. B.S. Chauhan
M/s. M.I. Qureshi
Shri. Balbir Singh
Shri. M.I. Quereshi
Shri. Manohar Badheka
Shri. Harsh Srivastava
Shri. Rajesh Pamnani,
Shri. Abhay Desai
:
Respondent
Appearance
Shri. M.K. Sarangi, Joint Commissioner(A.R.) for the Appellants
Shri. J.S.Sanghvi, Consultant with Shri. Ravindra Jain, Consultant for the Respondent
CORAM:
Honble Mr. P.S. Pruthi, Member (Technical)
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 5/8/2015
Date of decision: /2015
ORDER NO.
Per : P.S. Pruthi
Revenue is in appeal against orders in original No. 40/2011 dated 30/4/2011, No. 41/2011 dated 28/4/2011 and No. 42/2011 dated 29/4/2011.
2. Cross objections are also filed by Shri. B.S. Chauhan in respect of Appeal No. C/660/11-MUM, in respect of Order in original No. 40/2011.
3. Investigation by Customs revealed that one Gurmit Singh Kohli floated various companies and proprietary concerns. He fabricated and forged documents relating to export of goods without actual physical export thereof and in this manner fraudulently claimed drawback of huge amount. He filed Shipping Bills with bogus IEC Code, bogus RBI Code, made forged Bill of Lading and bank attested invoices, forged signatures of officers of preventive department on export promotion (EP) copies of shipping bills and also examination reports were obtained on the shipping bills without carting the goods and without exporting any goods. In this manner he created companies and claimed drawback in the name of M/s. GSK Exports, M/s. ATA Industrial enterprises and M/s. All Export. M/s. All Exports, and M/s. GSK Exports claimed drawback at Nhava Sheva port and M/s. ATA Industrial Enterprises claimed at Nhava Sheva and Mumbai Port. The address of the companies in the drawback register were found to be bogus. The description of the goods was shown in the Shipping Bills as Handicrafts of Brass Artware, Motor vehicle parts Kingpin nickel metal, spring bush copper. The Shipping Bills showed Custom House Agent as M/s. Crown Shipping or M/s. PAL India Shipping Agency. In some cases the shipping bills were registered with export department and proper order for examination was given by the appraising officer. In some cases drawback was sanctioned and in some the drawback amount claimed was not yet sanctioned. But the original and duplicate copies of shipping bills were not traceable. The scrutiny of triplicate copies(drawback copy) showed that the examination report was given by Shri. B.S. Chauhan, Shri. Abhay Desai, and Shri. Harsh Sriastava, Appraising Officers. Inquiry with Central Intelligence Warehouse Corporation revealed that no export goods were carted at CWC, CFS, Kalamboli. Inquiries with the shipping agent, in whose name Bill of Lading were filed revealed that the bills of Lading were fabricated and forged. In some cases the Shipping Bills (S/Bs) on which drawback was claimed were entered in export register under different name. In the case the of some S/B Nos., goods were shown to be carted back to town as per CWC records in respect of there S/Bs but still drawback was claimed. In some cases quantities shown in shipping bills as stuffed in containers were much beyond the capacity of the containers. The drawback copies of S/Bs were tampered in respect of quantities shown, so were the Bills of Lading. Invoices submitted to Customs were sometimes different from those supposedly attested by the Bank or submitted to the Bank, sometimes remittances were not received against so called exports. Inquiries with Banks such as Panjab and Sind Bank indicated that the bank certified invoices submitted on whose basis drawback was claimed were fabricated and forged. It was also revealed that this bank does not have any account in the name of the M/s. All Export. It was also revealed that the endorsement of preventive officers on the photocopy of export promotion copies of shipping bills are forged. RBI code number on Shipping Bills was found to be bogus on verification from RBI. The IEC code was found to be not issued by DGFT.
3.1 In his statement Shri. Gurmit Singh Kohli stated that he was proprietor of M/s. ATA Industrial Enterprises, In January 1995 he started a proprietary firm by the name of M/s. All Exports. He admitted to have received drawback without making any export in respect of companies floated by him. He also stated that he was getting the drawback with the help of the officers and staff and distributed some amounts to them. Further that Shri. Ramesh Singh(Shri. R. Singh) of Adarsh Clearing and Forwarding Agency had told him that Shri. B.S. Chauhan, Dock A.O. was ready to give examination report on the drawback shipping bills without carting the goods for shipment. Shri. Chauhan was to charge 25% of the drawback amount for giving the examination report and out of charge. For this purpose he sent Shri. Balbir Singh, an employee of Shri. Ramesh Singh to the Appraiser Shri. Chauhan. It was Shri. Chauhan who guided them to prepare documents, float new company(M/s. All Export), that is how the modus operandi was carried out, 25% of the drawback amount was taken by Shri. Chauhan, the drawback cheques were obtained after paying the officers and staff in the drawback department. He prepared all the documents and got the shipping bills prepared by Shri. Ramesh Singh. Some of the Bills of Lading were prepared by him and some by Shri. Ramesh Singh. He admitted that the bank attested invoices were signed by him as Manager of the Bank.
3.2 As regards the triplicate shipping bills available, Shri. Qureshi of Crown Shipping, CHA and Shri. Manohar Bhadeka of Pal India Shipping stated that shipping bills were not signed by them nor were they entered in their export register. However Shri. Bhadeka also stated that some business was brought to them by Shri. Ramesh Singh from whom he would receive Rs. 1500 per month but he did not issue bills to the companies whose business was brought to him. Shri. Ramesh Singh had a Custom pass in his company in 1994 which was surrendered in January 1995. The proprietor of Adarsh Clearing and Forwarding Shri. Ramesh Singh admitted that shipping bills were prepared in his office and were sent to the office of Pal Shipping Agency and Crown Shipping Agency for signature. Shri. Omprakash employee of Adarsh Clearing and Forwarding Agency in his statement admitted that Shri. Ramesh Singh was using licence of Crown Shipping Agency and for a short period of PAL India shipping 3.3 Shri. B.S. Chauhan admitted that he had examined the goods and signed examination report but as there was not enough place for carting/stuffing the goods in the shed, the goods of single shipping bills used to be carted in different places. He never endorsed on the S/B as to where and in which location cargo is carted. Further that during overtime posting, the light was not proper and it was difficult to see clearly in the shed. He only depended on the CHA presentation of the Cargo and mischief may have been played by the CHAs dock clerk. He denied receiving 25% of the drawback claim. The drawback agent of the firm M/s. ATA Enterprises, Shri. Paresh Kanthariya admitted in his statement that Shri. Gurmit Singh Kohli gave him 37%+3% commission for looking after drawback work right from collecting the shipping bills till collecting drawback cheques. He admitted that he would collect drawback cheques within a week with the help of EP copy instead of the duplicate shipping bills. Shri. Rajesh Pamnani, LDC tally clerk admitted that he tallied the drawback shipping bills with the duplicate shipping bills; as the shipping bills were not traceable he stated he might have tallied shipping bills by relying upon the particulars of the drawback claim on the export promotion copy of the shipping bill.
3.4 Consequent to the investigations, show cause notices were issued to Shri. Gurmit Singh Kohli, Shri. Balbir Singh, Shri. Qureshi of the Crown Shipping Agency, Shri. Manohar Bhadeka of PAL India Shipping Agency, Shri. Paresh Kanthariya, Ramesh Singh and also to Shri. BS Chauhan, Shri. Abhay Desai and Shri. Harsh Srivastava all Appraising Officers and Shri. Rajesh Pamnani, Tally Clerk. The Commissioner confirmed the demand of drawback already paid, rejected the claim of drawback in respect of shipping bills for which drawback was not sanctioned. The goods were held to be liable to confiscation. However in the absence of goods no order was passed for confiscation. Imposed penalty on Shri. Gurmit Singh Kohli and Shri. Ramesh Singh. However he dropped penalties on Shri. Balbir Singh, Shri. Qureshi, Shri. Manohar Bhadeka, Shri. Paresh, Shri. BS Chauhan, Shri. Desai, Shri. Srivastava and Shri. Pamnani.
4. Revenue found fault with the adjudication order in not relying on the statement of Shri. Gurmit Singh Kohli admitting the whole modus operandi and that he has distributed various amounts to the officers. Further that adjudicating authority ignored the statement of Shri. Manohar Bhadeka who had admitted to being paid by Shri. Ramesh Singh for the business brought to him by the latter. Thus Revenue in its appeal seeks to impose penalties against Shri. Balbir Singh, Shri. Qureshi, Shri. Manohar Bhadeka, Shri. Chauhan, Shri. Desai, Shri. Srivastava and Shri. Pamnani.
5. Heard both sides.
6. Learned A.R. appearing on behalf of the department reiterates the grounds of appeal. On the preliminary objection of respondent that the appeal memo is not signed by an authorized person, he relied on Mumbai High Court decision dated 3 Feb 2012 in the case of CC Vs. MB Electronics in Civil Appeal No. 60/2007 to state that appeal memo by a person not so authorised is only an irregularity and not illegality. On the issue of retraction of statements he relied on the case of Mohtesham Mohd Ismail. He also relied on High Court judgment in case of Zaki Ishrati[2013(291)ELT 161] to state that the retraction is not acceptable as it was made after many years.
7. Learned Counsel for the respondent Shri. Chauhan stated that appeal filed by the A.C. on authorisation given by the Commissioner is not tenable. He relied on Collector of Customs Vs. Arvind Exports[2001(128) ELT 133] and on Commissioner of Customs, ACC, Mumbai Vs. M.B. Electronic[2007(207)ELT 225]. On merits he argued that statement of Shri. Chauhan of having physically examined the goods has been discarded without reason. The case had been handed over to CBI who found that the signature on the shipping bill were not of Shri. Chauhan. Therefore confessional statement recorded in April 1996 is untenable. Statement of Shri. Chauhan which was retracted later has to be considered in toto and not in parts. If it is the allegation that signature is his, then it cannot be held that he did not examine the goods and vice versa. He relied on Commissioner of Central Excise Vs. Rajdoot Cables [2010(254) ELT 606 (P&H). The other contention is that when the goods are not liable to confiscation, no penalty can be imposed under Section 114(iii). Another point raised by the Learned Counsel is that the statement of co-accused could not be treated as substitute evidence; he relied on Mohtesham Mohd. Ismail [2007 (220) ELT 3(SC)] and Santosh Pandurang Patil[2014(306) ELT A66]. On the charge against Shri. Rajesh Pamnani tally sheet cleark, it was stated that Shri. Pamnani was not known to Shri. Kohli. Allegation of payment made to Shri. Pamnani per shipping bill is only based on hearsay evidence. Further the standing order relied upon by the department does not state that the drawback claim is to be matched with the duplicate copy of shipping bill with drawback copy.
Learned Counsel for Shri. Ajay Desai in appeal No. C/644/2011 stated that the adjudicating authority dropped penal action on the ground that the signatures of Shri. Desai are found to be forged as revealed in the investigation undertaken by CBI. Therefore the allegation on the part of appellant does not survive. He reiterated the findings of the adjudicating authority. He relied upon Commissioner of Customs, New Delhi Versus M.I. Khan[ 2000(120) ELT 542(T)] [2007(217)ELT 592(T)] G.H. Industries Versus Collector of Central Excise, Ahmedabad [1997(94) ELT 483(T)]
8. We have carefully considered the facts and submissions
9. Learned counsel for the respondent Shri Chauhan made a preliminary objection that the authorisation under Section 129(D) is filed by the Assistant Commissioner and is therefore not maintainable. The authorisation should have been filed by the Commissioner. He relied on the case of M.B. Electronics (supra). We find that, as pointed out by the learned AR, in this very case in Civil Appeal 60 of 2007 in Order dated 03-12-2012 the Honourable High Court of Mumbai held that the appeal memo not being signed by an authorised person only amounts to an irregularity and not illegality. Therefore we proceed to examine the case on merits.
10. A contention raised by the counsel for the respondents is that the whole case is based on the statement of Shri GS Kohli only and is not tenable, relying on the case of Santosh Pandurang Patil (supra). We find that in this judgement the honourable High Court of Madras, after considering the decision in the case of Naresh Sukhwani 1996(83)ELT 258 (SC) which is relied upon by Revenue, held that mere confession of a co-accused cannot be the basis for deciding the charges against the other accused unless there is some other evidence against the accused. The same view was taken by the apex court in the case of Mohtesham Mohammed Ismail l versus Special Director Enforcement 2007 (220) ELT 3 (S. C.). Their Lordships held that it is now a well-settled principle of law that a confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom We may however notice that recently in Francis Stanley, this court has emphasised that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closure scrutiny. It is further more now well-settled that the court must seek corroboration of the purported confession from independent sources.. In view of the judicial pronouncements of the apex court above, we find force in the contention of the learned counsel that there has to be some more independent evidence apart from the statement of Shri GS Kohli. The reliance placed by Revenue on the Allahabad High Court judgement in the case of Zaki Ishrati vs Commissioner Kanpur 2013(291)ELT 161(All) is not acceptable because the facts were different. In that case the accused did not make any complaint to the magistrate at the time of remand. He only retracted his statement later, not to the officers who recorded the statement at Agra but to the Collector at Kanpur. In these circumstances the retraction was not accepted by the Court.
10.1 We may now examine the facts of the case before us in the light of judgements discussed above. Initially Shri B S Chauhan admitted that the signatures on the shipping bills bearing examination reports were his. He also stated that he had given the examination report on the basis of goods shown to him by the CHA but denied having received any money. It is indeed strange that although the Customs investigating agency had specimens of handwriting when the statements of Shri Chauhan were recorded in March April 96 there is no evidence that the handwriting experts opinion was taken at that stage. If it was taken the same was not made available to Shri Chauhan who requested for it vide his letter dated 05.03.07. The case of the department is based on the statement of Shri GS Kohli. He deposed that Shri R S Singh (the employer of Shri Balbir Singh) had told to Shri GS Kohli that according to Balbir Singh, Appraise Shri B S Chauhan would give examination reports as desired by them . At the same time the fact is that Shri GS Kohli and Shri R S Singh themselves never discussed any issue with Shri Chauhan. Therefore as held by the adjudicating authority, the next logical step for investigation shoul have been to examine Shri R.S. Singh and Shri Balbir Singh. But this was not done. This step for investigation was most necessary when in the present case it is claimed that Shri. GS Kohli was not informed by Balbir Singh about discussion with Shri. B.S. Chauhan, but was informed by R S Singh who is the employer of Balbir Singh. Hence the Department is relying on evidence which cannot even be called secondary evidence. In these circumstances it hardly merits any consideration. More so when the Department did not examine Balbir Singh who is supposed to have met B S Chauhan. Therefore the statement of Shri GS Kohli is beyond secondary evidence and cannot be relied upon in the face of judicial pronouncements discussed in paras above. In the facts and circumstances the allegation against Shri BS Chauhan is based merely on hearsay evidence in the form of a statement dated 08.08 1995 of Shri GS Kohli.
10.2 Another aspect of the investigation is that the CBI started investigating the case in January 2002 and completed investigations in December 2004. Initially the CBI had filed FIR on 8.1. 2002 against various persons that is Shri GS Kohli, Shri Abhay Desai, Shri BS Chauhan, Shri Qureishi, Shri Bhadeka, Shri Pamnami. But the charge sheet filed on 24. 12. 2004 was only against Shri GS Kohli on the basis of GEQD Hyderabad which is the agency for verifying handwriting. It appears that after verifying from the opinion of the handwriting expert, the final chargesheet was filed the against Shri GS Kohli only. The documents alleged to have been signed by Shri BS Chauhan are also part of the investigations carried out by the CBI. The specimen signatures and handwriting of Shri BS Chauhan were also taken by the CBI and sent to the handwriting expert. On the basis of the charge sheet filed by the CBI it is concluded that Shri BS Chauhan did not write the examination reports and signed the same as alleged in the show cause notice. The Commissioner appears to have rightly concluded that when Shri GS Kohli could forge the signatures of bank officers, steamer agents, CHAs etc nothing prevented him from forging the signatures of Shri BS Chauhan. The Commissioner has come to a reasonable conclusion that, even though Shri BS Chauhan had agreed initially that the examination report was signed by him, he(Commissioner) viewed that if anyones handwriting and signatures are forged, then on seeing it for the first time that during investigation he or she may assume it to be his own. The Commissioner therefore correctly agreed with Shri BS Chauhans explanation.
10.3 The Commissioner goes on to explain that the original and duplicate copies of the shipping bills were not available even in the year 1995 when the case was investigated by the CIU Custom House. In the case of drawback, the examination report was written on the duplicate copy of the shipping bill with carbon copy of the report on the drawback (triplicate) copy and EP copy of the shipping bills. It is a fact that the reports, initials and signatures on the shipping bills found on drawback copy were verified by the GEQD Hyderabad as discussed in detail in the chargesheet dated 24.12. 2004 filed by the CBI. Since the documents which were verified by the GEQD were supposed to be on the triplicate copy of the shipping bill, it would not have been a different result if handwriting written on the original copy was examined by the handwriting expert. In sum, the Commissioner held that the charge against Shri BS Chauhan does not hold good.
Revenues grounds for appeal are, inter-alia, that Shri Chauhan did not retract his statement for 11 years. Further that the standard of proof in a civil case is preponderance of probability compared to a criminal proceeding where charges have to be proved beyond reasonable doubt. Revenues contention is that just because the adjudicating authority appears to have wrongly construed that the CBI is not pressing proceedings against the officers in the court, it does not mean that they were not guilty. In view of the details of the case discussed in paras above, we are of the view that the case established by Revenue does not even meet the standards of proof in a civil case. The case is full of flaws. It is not explained why for many years Revenue did not get the handwriting of the accused verified by the handwriting expert. This is especially so when Shri GS Kohli admittedly forged the signatures of all other agencies such as banks, steamer agents, RBI, DGFT etc. In such circumstances the preponderance of probability is that Shri GS Kohli had forged the signatures of Shri Chauhan too. Further department is taking a contradictory stand as far as the statement of Shri Chauhan is concerned.
10.4 Further there are vital links missing in the investigations. It is beyond comprehension why Shri Balbir Singh was not examined when he is the person who is supposed to have conveyed to Shri GS Kohli about the settlement with Shri BS Chauhan. More so when Shri G S Kohli and Shri R S Singh (employee of Shri Balbir Singh) themselves had never discussed any issue with Shri BS Chauhan.. Therefore we hold that Revenue has not been able to counter the logical reasoning and analysis by the Commissioner in absolving Shri B.S. Chauhan of the charges.
10.5 The reasoning given by the Commissioner in the case of Shri BS Chauhan is also true for the other Appraising Officers namely Shri Desai and Shri Srivastav. We absolve them of the charges too as held by the Commissioner and reject Revenues appeal.
10.6 Similarly we find no substance in the Revenues appeal in the case of Rajesh Pamnani. To appreciate the sustainable reasons given by the Commissioner in his Order, we reproduce this part of the Order as below 6.11 I find that penalty has been proposed on Sh. Rajesh Parnnani4,. Tally Sheet Clerk u/s. 114(iii) of the C.A. 1962, under para 48(ix) of the SCN, in as much as he failed to tally the triplicate (Drawback) Shipping bill copy with the duplicate shipping bill or the particulars thereof entered in the matching register. He relied upon E.P. Copy instead of duplicate copy of the Shipping Bill for tallying the same which was in contravention of standing instructions issued under S.O. No. 4 of 1989(RUD at Sr. No. 41 of the list of the documents of the SCN). In this regard it is observed that as per Part C of the said Standing Order Tally Sheet Clerk was required to enter the details of the Drawback claims as per the claim papers forwarded to him by the L.D. Clerk of the Drawback section. As per the Standing instructions there was no obligation and prescribed procedure for the Tally Sheet Clerk to verify Drawblack claims with the duplicate copy of the Shipping Bills. The said stnaind The said Standing Order prescribed the detail procedure for processing of the Drawback claims and the role of Tally Sheet Clerk was confined to the Data Entry in a specified column of the relevant annexure of the said Standing Order. Further I find merit in submission of Shri. Rajesh Pamnani that alleged non-matching of drawback claim with the duplicate copy of Shipping Bill, though not mentioned in the said Standing Order would not have been much help for detecting such cases of fraud and forgery. It is fact that Sh. Pamnani was not known to the modus operandi of Sh. G.S. Kohli-and not alleged even to be connived with Sh. G.S. Kohli and considering his confined role in whole process it is not proper to hold him as an abettor to a fraud of such magnitude. There is force in his submission that the allegation against him was a statement given by Sh. Gurmit Singh Kohli that Sh. Rajesh Pamnani was paid Rs. 5000/- Per Shipping bill by drawback agent Sh. Paresh Kantharia, which is a hearsay evidence and same is not sustainable in law. Further, he submitted that the investigating agency has not found the statement of Sh. G.S. Kohli worth reliance for action against other officer (Sh. Praveen Arora, Examiner para-41-iv and John Pinto, Asstt. Commissioner para-44-iii of SCN.) named by him. Without specifying reasons, it is not reasonable to take action against some of the officers while leaving others. Hon'ble High Court, Punjab and Haryana, in case of Commissioner of Central Excise, Delhi IV Ws Rajdoot Cables P. Ltd. - 2010 (251)ELT 6064438(H) has held that if a statement has to be believed then it has to be believed in its entirety, not in parts and piece meal. I find that once it was found by an investigating agency that the statement of Sh. G.S. Kohli was not a good enough evidence to allege some of the officers implicated by him, the same could not have been made basis for others to establish charges against them, more so when no reasoning have been given for such different treatment for different officers.
We find no good reason to differ with the Order and uphold the same in dropping penalty against Shri. Pamnani.
10.7 The next person against whom penalty is dropped is Shri. Balbir Singh. We I find that only basis of allegation against Shri Singh is the statement of Shri Gurmeet Singh Kohli. No evidence from any other independent source is seen by us. We find the findings of Commissioner.. The law is laid in Hon'ble Apex Court judgment in the case of Mohlesham Mohd. Ismail v/s Special Director Enforcement Directorate(supra) that confession purported to have been made before an authority requires closer scrutiny and there should be corroboration of such confessions from independent sources. We find that Shri Balbir Singh was not even examined during investigation. Finding his guilty without even an opportunity of examination is not sustainable in law.
Therefore, the department has not proved the case with any degree of certaint. We hold that penalty cannot be imposed on Shri. Balbir Singh.
10.8 Both Shri M. I. Quereshi of M/s Crown Shipping Agency and Shri Manohar Badheka of Pal India Shipping Agency have been charged with filing the impugned Shipping Bills without verification of the authority and authenticity of the documents for monetary consideration. We find that Sh. Quershi in his statement dated 1.7.96 stated that the signatures and initials on the impugned s/bills appeared to be of his, however, he further stated that he would verify from the job register whether these were handled by them. In his later statement dated 14.11.96 recorded by the CIU, he stated that after going through the records, he finds that these S/Bills were not pertaining to them. He further stated that the signatures on the S/Bs were not his. He stated that his earlier confession on 1.7.96 was due to tension as he was mentally upset. He further stated that at the relevant time Shri. R.S.Singh used to handle the work at Nhava-Sheva. We find that the department did not conduct further investigation to prove that this denial was after-thought. It has not been established by the handwriting expert that the signatures are of Shri. Querishi. Hhence, found with substance. Similarly, we find that in statements of Shri. Manohar Badheka, partner of Pal India Shipping Agency recorded on 18.06.96 & 21,06,96, he stated that the signatures on the S/Bs were not of his, neither of his partner and further stated that they had not given authority to any person to sign S/B on their behalf. He also stated that these S/Bs were not found to be entered in their export register. However, it was admitted that Sh. Ramesh Singh was working in their company from 1994 to January 95. Sh. Manohar Badheka further stated that he did not know Sh. G.S.Kohli nor did Sh. R. S. Singh bring any business pertaining to M/s. All Exports from Sept. 94 to Feb'95. We observe that the submissions made by Sh. Manohar Badheka have not been challenged in the Show Cause Notice.
The Departments case is that Shri.R.S. Singh was getting the signatures of M. I. Quereshi of M/s. Crown Shipping and Shri. Manohar of M/s Pal India Shipping on the S/Bs as he did not have a CHA License. But,, when confronted with the impugned S/Bills he stated the signature only in 2 cases some what appeared to be similar to the owner of Crown Shipping. He did not confirm positively that the signature are of the owner. In the remaining Shipping Bills filed in the name Crown Shipping, Shri. R.S. Singh denied that the initials are of owner of Crown Shipping. As regards Shipping Bills showing the CHA as Pal India Shipping Agency, he categorically stated that the signatures were not that of Manohar Badheka. Both Shri. Quereshi and Badheka have denied that the relevant S/Bills bear their signature. The department should have taken the help of handwriting experts, more so when so many documents and signatures were found to have been forged by the Shri. G.S. Kohli. We do not appreciate that department proposes to fix responsibility on these persons without caring to verify whether the signatures on the S/Bs were theirs. Shri. Quereshi stated that when Shri. G.S. Kohli and Shri. R.S. Singh had forged signatures of so many officers of Customs, Banks and Steamer Agents they could have forged his(Quereshis) signatures as a CHA on these fabricated S/bills. The absence of any evidence to prove that Shri. Quereshi and Shri. Badhekar had indeed filed the S/Bills, the penalty on them is clearly not sustainable.
11. In view of the analysis in paras above, the impugned Orders are upheld and Appeals dismissed.
( Order pronounced in court on_____________) Ramesh Nair Member (Judicial) P.S. Pruthi Member (Technical) sk 22 C/660, 664, 665/11