Custom, Excise & Service Tax Tribunal
(I) Shri Shib Kr. Agarwal vs Commr. Of Customs (Prev.), Wb, Kolkata on 5 May, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
Cus. Appeal Nos.217,204,224 & 177/08
Arising out of O/0 Nos. 04/Cus/CC(P)/WB/2008 dated 26.2.2008 passed by Commr. of Customs (Prev.), WB, Kolkata.
For approval and signature:
SHRI S. S. KANG, HONBLE VICE PRESIDENT
SHRI M. VEERAIYAN, HONBLE TECHNICAL MEMBER
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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
(i) Shri Shib Kr. Agarwal
(2) Shri Ram Chandra Ghosh
(3) Shri Prabhas Chandra Biswas
(4) Shri Prabir Kumar Pal
APPELLANT(S)
VERSUS
Commr. of Customs (Prev.), WB, Kolkata
RESPONDENT (S)
APPEARANCE Md. Faisal Farook, Advocate for Sl.No.(1), Shri B. N. Pal, Advocate for Sl.No.2, Shri K. K. Sanyal, Consultant for Sl.Nos.(3) & None for Sl.No.(4) for the Appellant (s) Shri A. K. Sharma, JDR for the Revenue CORAM:
SHRI S. S. KANG, HONBLE VICE PRESIDENT SHRI M. VEERAIYAN, HONBLE TECHNICAL MEMBER Date of hearing & decision : 05. 05. 2011 ORDER NO.. Per Shri S.S.Kang :
Heard both sides. All the four appeals are filed against a common adjudication order passed by the Commissioner of Customs. The Commissioner of Customs in the impugned order, ordered the recovery of draw back amount of Rs.50,93,955/- from the proprietor of M/s R. D. International. The Commissioner of Customs also held that the draw back claim of Rs.10,10,880/- is under two bills of exports as null and void. Penalties were imposed on Shri Shib Kr. Agarwal, Shri Pravash Ch. Biswas, Superintendent of Central Excise, Shri Ram Ch. Ghosh, Inspector of Central Excise & Shri Dipal Kumar Singha, Inspector under Section 117 of Customs Act, 1962.
2. Shri Shib Kr. Agarwal only challenged the impugned order whereby the adjudicating authority ordered repay the draw back amount of Rs.50,93,955/- and penalties. The other appellants only challenged the adjudication order regarding imposition of penalties.
3. The draw back amount in dispute was sanctioned in respect of 10 bills of export whereby it has been shown that the goods like bi-
cycles parts, imitation jewellery total FOB value of Rs.13299948/- was exported to Bangladesh and on this count, the draw back claim was sanctioned. The case of the Revenue is that in fact, no goods were exported. The exporter with the connivance of the Customs Officers prepared the export documents and availed the draw back. The ld. Counsel appearing on behalf of Shri Shib Kr. Agarwal submitted that the export was made in the year 2002. The goods were examined by the Customs Officials. The samples were taken, thereafter, bills of export were assessed and the goods were exported. It is also submitted that the consideration amounts regarding the exported goods were duly received by the appellants . In such situation, it cannot be said that no export has been made. The Revenue relied upon the investigation conducted from the transporter and came to the conclustion that National Transport Syndicate i.e. transport agency, was not available at the given address. The contention is that the goods were transported in the year 2002 and enquiries were made in the year 2004-2005. At that time, the transport agency may have shifted their office. Some enquiries were conducted from the owner of the transporter whose truck number was mentioned in the transport documents. Out of 13 truck owners, six owner gave statements that no goods of the appellants were transported to the Land Customs Station and 7 were not found at the given address. It is submitted that the appellants seek cross examination of the drivers/owners of the vehicles whose statements were relied upon by the adjudicating authority. In respect of transport/owners of the drivers who were not available at the given address, the contention is that the enquiries were conducted after two or three years of the export of goods, hence, non-availability of the owners or drivers at the given address will not prove that the goods were not transported. The appellants also relied upon an affidavit now procured from the recipient of the goods in Bangladesh in support of their claim that the goods were exported.
4. The ld. Counsel appearing on behalf of Shri Pravash Chandra Biswas, Superintendent of Central Excise, submitted that the Superintendent were not to examine the goods. The Superintendent only directed the Inspector to examine the goods and to take the samples and thereafter, directed the Inspector of Customs to issue late export order if the goods were as per the declaration. Hence, the appellant is not liable for penalty. On behalf of the Inspector of Customs, the contention is that the appellants examined the goods and the samples were taken as per direction of the Superintendent and thereafter, the late export orders were issued and the goods actually crossed the border. As the appellants done his duties as prescribed under the Customs Manual, Chapter III Para 3. Therefore, it is not a case for imposition of any penalty. It is also submitted that there is no evidence on record to show that the Superintendent or Inspector of Customs has done something for consideration.
5. The Revenue submitted that during investigation, Shri Shib Kr. Agarwal was summnoned and he gave his statements under Section 108 of the Customs Act. In his statement, he submitted that the goods in question were procured through various brokers but on specific queries, he failed to give the names and addresses of the brokers. In his statement, he assured that he will give such details but subsequently, he failed to appear before the investigating officers. It is submitted that the statements of the owners/drivers of the trucks whose truck number was mentioned in the export documents were recorded and they denied the transportation of the goods of the appellants. It is also submitted that the evidence regarding procurement of goods in question, evidence of payment regarding procurement of goods was not produced by the exporter. Even, Shri Shib Kr. Agarwal even failed to disclose the names of the dealer/brokers from whom the goods were procured.
6. It is also submitted that the enquires were conducted from Bangladesh Customs Authorities through Indian Embassy which shows that no goods were received by the persons under whose names the goods were exported. In respect of receipt of the consideration amount, the contention of the Revenue is that the goods were exported to Bangladesh and amounts were received from Singapore and New York. In respect of affidavit received by the appellants, the Revenue pointed out that the proprietor of M/s Munna Enterprises who is importer of the goods, is Md.Muktar Ahmed and now the affidavit has been filed by Mr. Md. Abdul Karim as proprietor of Munna Enterprises. It is also submitted that the affidavits are dated 26.5.2008 which were procured after the adjudication order. As the exporter failed to prove the procurement of goods, payment in respect of procurement of goods and transportation of goods to the Land Customs Station, hence, no goods were exported. The export documents were prepared to show the export which can not be done without the connivance of the Revenue Officers.
7. Ld. JDR for the Revenue also submitted that as per export documents on record, the Superintendent of Central Excise ordered to take samples from the goods and the samples were taken, but there is nothing on record to show what happed to those samples. Ld. JDR submitted that as per Customs Manual, Chapter III Para 3, if the assessing official has doubt regarding value or description of goods, he may call for samples from the goods and the sample has to be set to test or for marketing enquiry and the shipping bill has to be assessed on provisional basis. In the present case, the bills of export were finally assessed in spite of the fact that the Superintendent ordered taking of samples which was taken as per export documents. In view of this fact, the contention is that the impugned order is rightly passed.
8. We find that the case of the Revenue is that no goods were exported to Bangladesh and draw back claims were made on the basis of export documents prepared with the connivance of the Customs Officials. During investigation, Shri Shib Kr. Agarwal appeared before the investigating officers and assured that the particulars regarding brokers through whom the goods were procured and the particulars regarding payment made in respect of procured goods will be supplied. But subsequently, he failed to do so. Investigation was conducted from the drivers/owners of the truck whose number was mentioned in the export documents. The owners/drivers denied transportation of goods of the appellants to the Land Customs Station. 7 of them were not found at the given address. During investigation or before the adjudicating authority not even before us the exporter produced any evidence regarding payment to the transporting agency or truck owners whose services were availed for transportation of the goods. Similar is the situation in respect of the procurement of goods in question. Further, we find that the exports were handled himself by Shri Shib Kr. Agarwal himself without engaging any CHA and without getting any prior approval from the competent authority for taking self clearance of the goods.
9. Further, we find that from the overseas enquiry from Bangladesh Customs Authority shows that no goods were received by the so-called importer in Bangladesh. The appellants produced two affidavit which were dated 26.5.2008 from the importer of goods. In the affidavits, nothing is mentioned why the payment was made from Singapore or New York, and not from Bangladesh though the goods were shown to have been exported to Bangladesh. Further we find that in case of one importing firm, the name of the proprietor is different which mentioned in the affidavit.
10. We find that the draw back scheme is an Export Promotion Scheme which has objective of increasing export. The Scheme seeks to make indigenous goods competitive in the exporting market by allowing draw back against the export made. As in the present case, there is noting on record regarding procurement of goods or payment made for procurement or with regard to transportation of goods. In the present case, as the appellants claimed the draw back, the onus to prove that the goods were procured and exported out of India is on the appellant. In view of the above facts, we find no infirmity in the order whereby the adjudicating authority held that in fact no goods were exported.
11. In respect of penalties on the Customs Officials, we find that as we have noted above that in fact no goods were exported and the export documents were prepared to avail undue draw back. This can not happen without collusion of the Customs Officials. We also find that Shri Pravash Chandra Biswas, Superintendent, directed the Inspector of Customs to draw the samples as per the direction, the samples were drawn. Thereafter, what happened to the samples, no evidence is on record. Further we find that as per Customs Manual, Chapter III Para 3, in case of doubt regarding value or description of goods, the samples were to be drawn and the goods are to be assessed provisionally. In the present case in spite of the fact that the samples were drawn, the bills of export were finally assessed by the Superintendent of Central Excise. In the circumstances as discussed above, no goods were actually exported and export documents were prepared with the help of official to get undue draw back claim, hence, we find no infirmity in the impugned order and all the appeals are dismissed.
(Dictated and pronounced in the open Court)
Sd/ Sd/
(M. VEERAIYAN) ( S. S. KANG )
TECHNICAL MEMBER VICE PRESIDENT
mm
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Cus. Appeal Nos.217,204,224 & 177/08