CUSAA/3/2011 of JAGMOHAN SINGH Vs COMMISSIONER OF CENTRAL EXCISE ADJUDICATION

IN THE HIGH COURT OF DELHI [AT ][NEW ][DELHI]

PRONOUNCED ON: 27.4.?OLL

& C.M. No. L5OL/2OI.1& C.M. No. L5O4|?OLL

CUSAA No. 2/2Ot 1CUSAA No. 3/20L1

. . . APPELLANT

JAGMOHAN [SINGH]

throuqh : Mr. NavneetPanwar, counsel for theappellant.

VERSUS

COMMISSIONER OF CENTRAL [EXCISE ][(Adjudication)]

. . , RESPONDENTthrouoh: Mr. Mukesh Anand with Mr. [R.C.S.]Bhadoria and Mr. Shailesh Tiwari,.counsel [for ][the ][respondent.]

CORAM :-HON'BLE MR. JUSTICE A.K. SIKRIHON'BLE MR. JUSTICE M.L. MEHTA

1. Whether Reporters of Local newspapers [may ][be allowed]to see the Judgment?to see the Judgment?

2. To be referred to the Reporter or not?Whether the should be reported [in ][the ][Digest?]Judgment Whether the should be reported [in ][the ][Digest?]Judgment

2. ' 3.

A.K. SIKRI, I. [(ORAL)]

For orders, see CUSAA No.1 of 2011.

APRIL 27, ?OLLIKA

3.\<-/A

M.L. MEHTA, J.

Signature Not Verified

lx[Nr rhlF i{nGH COUR-f [qF ][DELHI][ AT ][NIEW DELI-{I]

PROilIOLIhICED Oru : 22.+.20L1

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. J . APPELLANT

JAGMOHAN [SINGH]

throuqh : Mr. Navneet Panwar, [counsel ][for the]appellant.

VERSUS

CoMMISSJoNER OF CENTRAL EXCISE [(Adjudication)]

throuoh: Mr. Mukesh Anand; ftt;'?"i.8:ltlBhadoria and Mr. Shailesh [Tiwari,]counsel for the resPondent.Bhadoria and Mr. Shailesh [Tiwari,]counsel for the resPondent.

CORAM :-Flolv',ts!-E, MR, i["[sT[CE A"K" [SlKR,l]r'{oNI'B!-E MR, .il,i5T[CE M.L. MEI{TA

:1. Whether Reporters of Local newspapers may be [allowed]to see the Judgment?to see the Judgment?

2. To be referred to the Reporter [or ][not?]

3. Whdther the should be leported [in ][the ][Digest?]Judgment Judgment

\)A.K._S'tKRl, [. [(ORAL]]

The appellant has preferred these appeals against the [Final]Order dated 15.3.2010 $assed by the Central Excise and Service TaxAppellate Tribunal [(CESTAT) ][whereby ][his ][appeal ][befoie ][the ][CESTAT]

Page L ofI

[Cus. [A,A. Nos, ][1/2011,21201.1. &31201'1']

arising out of the order-in-original dated 30.9.2005 has beendismissed. By that order-in-original, the appellant was imposed withpenalty of { 20 lacs under Section 114 of the Customs Act. Befo.reinflicting this penalty, show-cause notice dated 30.r2.2003 wasdismissed. By that order-in-original, the appellant was imposed withpenalty of { 20 lacs under Section 114 of the Customs Act. Befo.reinflicting this penalty, show-cause notice dated 30.r2.2003 wasissued to trim in .esp".t of such an export effected by M/s Unicornlndustries, G-22llA, Rajouri Garden, New Delhi, and certain acts oflndustries, G-22llA, Rajouri Garden, New Delhi, and certain acts ofcommission and omission were imputed against the appellant;as well.The aforesaid penalty has been sustained by the impugned.order,The aforesaid penalty has been sustained by the impugned.order,

2, In this appeal, the challenge to the order of the Tribunal is on theground that though the Tribunal has specifically taken note of thestatements made by the appellant in pa ra 28 of the impugned order !but the statements are not dealt with and no conclusions/findings arearrived at by the GESTAT qua the appellant. lt is argued that by theimpugned order, 17 appeals were decided and it appears that by inadverterlce, omissions or otherwise, the case of the appellant had notbeen eiamined before dismissing his appeal.3. In p? ra 28 of the impugned order, foilowing statements made bythe appellant are noted:

"it was submitted on behalf of the Appellant sri Jagmohansingh that the statement recorded from him on 15,10.2oolbeing under force and coercion as well as physical torture wasretracted on 16.10,2001, nothing implicates the appellant tocharges. The Appellant being merely engaged in issuance of Airway Bills through M/s eedi & co., hal [-booked ]space for

[Cus. [A.A. Nos, ]1/201I, Z/2.01,I &3 /Z0II

pase 2 of

cargo through IATA ,had not abetted commitment of tlreoffence alleged againlst Exporters. He was not CHA andnever acted as such. He was neither ["G" ]card.holder"hor ['H"]card holder and had no access to customs area. He wasn'ever involved in examination, processing of the documentsof export or arrange.d for inspgction of goods; He had notinvolved himself in the exports. He being neighbor of SriTejwant Singh cannot be implicated to charge without anybasis of connivance and conspiracy with exporters to causeloos to revenue by any unreasonable claim of DEpB.credits.He was no way connected with procurement of goods byexporters. None of the statements recorded has implicatedthe appellant. Norie of the ingredients of Section 114 beingpresent, the appellant is not liable to penalty."

It is clear from the above that;

(i) His statement recorded on 15.10.2001 was under force andcoercion as well as physical torture which was specificallyretracted on 16,10.2001 and, therefore, there wa's nothingto implicate the appellant of the charges leveled againslhim.coercion as well as physical torture which was specificallyretracted on 16,10.2001 and, therefore, there wa's nothingto implicate the appellant of the charges leveled againslhim.

'(ii) him.The appellant was merely engaged in issuance of airryaybilts through M/s Bedi & co. and had booked space throughcargo IATA and had not abetted the commitment of offenceal leged agai nst exporters.The appellant was merely engaged in issuance of airryaybilts through M/s Bedi & co. and had booked space throughcargo IATA and had not abetted the commitment of offenceal leged agai nst exporters.

(iii) He was not CHA and never acted as such.

(iv) He was never involved in examination, processing of' documents of export and never arranged for inspection ofgoods.' documents of export and never arranged for inspection ofgoods.(v) Sh. Tejwant Singh was his neighbor and merety on that, basis, the appellant could not have been implicated in thecase., basis, the appellant could not have been implicated in thecase.

(vi) He was no way concerned with the procurement of goods byexporters and none of the s.tatements recorded hadimplicated the appellant.exporters and none of the s.tatements recorded hadimplicated the appellant.

On that basis, the statement of the appellant was that the

ingredients of Section I74 of the Customs Act had not been satisfied inthis case.this case.

fCus. [A.A. Nos. ][1/2011,,2/2011, ]&.3/Z0II

paee 3 of

4 When we go through the impugned [order, ][no ][doubt ][the ][same]reveals that the [afoiesaid ][contentions ][of ][the ][appellant ][in one ][go ][and at]one stage in a,consolidate.d [manner ][are not replied ][adverted ][to ][by ][the]Tribunal. At the same tinie, [when ][the ][order ][is ][read ][in ][its entity, ][it ][is]that [each ][and every ][statement ][of ][the ][appellant ][is duly]clearly.reflected dealt with at various stages.5r In para 52 o.f the [impugned order, ][the Tribunal ][has recorded ][that]the premises of the [appellant ][are ][situated ][in ])-7186 [at ][Rajouri ][Garden,]New Delhi. He is now the [proprietor ][of ][M/s ][Lotus ][Cargo ][Service. ]['More]importantly, what [is ][noted is ][that the ][statement of ][the ][appellant ][was]recorded on 29.8.2001 as well and [in ][this ][statement he ][had ][disclosed]that he issued airway [bills ][for the ][firmi ][namely, ][M/s ][Zap ][Fashions, ][M/s]Unicon Industries, M/s [Bonita Industries, M/s ][Skyways ][Industries' ][M/s]Oberoi lndustries and M/s chabra Industries. ln [this very statement, ][he]ha6 also categorically [accepted ][the fact ][that all ][these ][firms ][were]controlled by Sh. Tejwant Singh who was the [proprietor ][of ][M/s ][Unicon]Industries [and ][the ][appellant was ][the ][neighbor ][of ][Sh. ][Tejwant ][Singh.]He had further admitted [that ][not ][only ][he ][had ][issued ][airway bills, ][he]was also looking after the customs examination of the [Export ][Cargo]relating to the [aforesaid ][six ][firms. ][He ][even named one ][Custom Officer,]nut"iy, Inspector Sh. Rajeev Kumar [Sharma ][who ][was ][witness ][to ][all ][the]

'examination of Cargo, In this statement, he further, admitted anirregular/illegal manner in which the cargos were cleared. Hespecifically admitted that under the instructions of Sh. Tajwanf'Singh,he was writing t[e shipping bills to read as "Fixation of DBK in terms bfCircular No.6Bl97-Cus dated 02.I2.7997 subject to production ofpayment of CVD/CEX duty"

6. First contention of the appellant, as noted above was that he hadretracted the statement dated 15,10.2001 on 16.10.2001. Nothing'.was argued by the appetlant insofar as his aforesaid , statementrBcorded on 29.8.20IO is concerned. Further, we find that this,statement [was ]nbt retracted either. In these circumstances, theargument of the appellant that he had retracted his statement dated15.10.2001 on 16.10.2001 into nothing rryhen we find that the,goes Tribunal had not relied upqn such statement on 15.10.2oor but haddiscussed the case of the appellant based on the statement recordedon 29.8.200L which had never been retracted, Not only this, theTribunal has also discussed other evidence which corroboratedaforesaid statement of the appellant. Discussion to this effect can befound in para 57'of the impugned order where it is mentioned that Sh.Tejwant Singh in statement had accepted and confirmed that theappellant was his neighbor who issued airway bills for cargo clearance.

'l . Even. Inspector Rajeev Kumar Sharma in his statement [had]corroborated that all the concerns were represented by Sh. JagmohanSingh (appellant h'erein) for clearance and he used to do liaison workwith customs for these firms for conducting market enquiry relating tomicrophones. Discussion in this behalf can be found in para 68 of theorder of the Tribunal.

8. lt is also mentioned that on 29.8.2OOI after the. statement wasrecorded,.!he appellant had stopped appearing. The Department hadfiteO complaint against him in the Court of learned ACMM, PatialaHouse but he did not respond to various summons issued against himand did not appear to give evidence. Therefore', non-bailable warrantswere issued a,gainst him and he was declared proclaimed offender.However, the appellgnt has now started appearing in thoseproceedings.

"b. On the basis of the aforesaid discussions, which specificallyconcern the appellant and other material evidence on record, the

Tribunal recorded its finding in paras 75 & 76in the following manner;

"75. Factual matrix depicted and relevant as well asmaterial facts and evidence noticed hereinbefore having given riseto investigation followed by overseas enquiry proved questionable. conduct of appellants. Extensive enquiry was done to ascertainvarious aspects including indentify of the suppliers of Microphoneand Fuel Pump Diaphragm. The persons involved in the exporttendered evidence proving various circumstances leading toexport of overvalued goods. Oral evidence tendered was well

corroborateQ by directed and [circumstantial ][evidence, ][Close]association of various [persons and ][their ][active involvement ][made]the export successful endangering [Revenue. ][Abetment ][and]connivance of the conduits facilitated [export ][causing loss ][to]Revenue. Ofal evidence [gathered remained ][unrebutted' ][lntimate]and close n6xus of each other [became ][patent ][from ][the ][modus]operandi by the exporters with the [conscious ][knowledge ][and]deliberate intention to let export [the ][overvalued ][goods.]

' 76. Deceitful commitment surfaced [with ][echoed ][evidence]againstthe exporters and abettors. [lll ][designed ][racket ][came to]light by Investigation. There was [no ][fault ][found ][with ][investigation]and process of investigation remained [unchallenged ][except]baseless pleas of violation of natural [justice ][and ][flimsy ][plea ][of]retraction of evidence when result of ill [design brought ][the]associates to the [grave ]of offence [committed under ][law ][and]confessional were well corroborated. [Acts of ][the ][appellants ][called]4for their trial in criminal court for [which complaint was ][also ][filed ][by]revenue. Nothing came out to the [rescue ][of ][the ][appellants ][in]absence of their bonafide. Series [of ][acts ][of appellant ][and chairi of]evidence gathered by investigation [proved ][ill ][intent and ][close]association of exporters with the abettors. [No circumstantial ][or]direct evidence was led to show that the [investigation ][was]perverse. Consequence of follow up enquiry and [substantial ][as]well as material and relevant evidence [were ][very well ][available ][on]record speaking against the appellant to [level ][charge ][against]them through Show Cause Notice. Weighty [and ][credential]'evidence 'on available record were sufficient enough to hold allacts of the appbllants to be detrimental [to ]the [interest of ][Revenue.]Adjudication does not appear to have [suffered ][from ][any ][of ][the]legirl infir,mities and cannot be faulted."

10. lt is, thus, clear that the Tribunal [has come ][to ][a ][specific finding]that the appellant herein had issued [airway ][bills; he ][had acted as ][an]- agent of the 5 concerns which were owned by Sh: Tejwant Singh; heplayed his role on specific instructionsofSh. Tejwbnt Singh; and hewas deialing with the Customs Officersinrespect of export of these

[Cus. [A.A. Nos. ][1/2011,2/2011' ][&3/20t1]

very goods, The Tribunal is thus [categorical ][that ][the ][appellant ][was]connected with the [procurement ]of [the ][goods ][by ][the ][exporters ][and]there were other statements and sufficient material [to ][implicate ][the]appellant.

11. We, thus, find no merit in these appeals [and ][the ][same ][are,]accordingly, dismissed alongwith [pending applications.]

M.!-. MEE-frTA, J.

APRIL 27, 2OLN.

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[Cus. [A.A. Nos. ][1/201-1.,2/20L1, ][&.3/Z1Lt]