Rajiv Kumar Sharma v. Commissioner of Central Excise Adjudication

SANJIVKHANNA,J Vm - R.V.EASWAR, J

$-17 to 19 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CUSAA 26/2011 & CM APPL. 11083/2011 + CUSAA 27/2011 & CM APPL. 11086/2011 + CUSAA 28/2011 & CM APPL. 11095/2011 % Date of Decision: 18^^"November,2011. RAHV KUMAR SHARMA Appellant Through Mr. Mohit Singh, Adv. versus COMMISSIONER OF CENTRAL EXCISE ADJUDICATION Respondent Through Mr. Satish Kumar, Sr. Standing cousnel CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.V. EASWAR 1.WhetherReportersof localpapersmay be allowedto seethejudgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest? SANJIV KHANNA J; (ORAL) These three appeals under Section 130 of the Customs Act, 1962 (Act, for short) arises out of the common order passed by the Central CUSAA Nos.26/2011, 27/2011 & 28/2011 Page 1 of13 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Excise and Service Tax Appellate Tribunal (tribunal, for short) dated 15.3.2010. 2. By the impugnedorder,the tribunalhas dismissedappealsfiledby the appellant herein, Rajiv Kumar Sharma, Preventive Officer of the Customs who was posted as Inspector, Customs, Tejwant Singh, and JagmohanSingh. Penalty was also imposed on Sanjay Kumar but it appearsthathe didnotfile any appeal. 3. The impugnedorder sustainspenaltyof Rs.lO lakhs, Rs.lO lakhs and Rs.7.50 lakhs imposedon the appellantvide order dated 30.12.2003 passedby the CommissionerofCustoms(Adjudication). ^ 4. The main and the primary contentionraised by appellantin the present appeal is that the impugned order passed by the tribunal is perverseand is contraryto the material and evidenceon record for the following reasons : (1) The market enquiry report submittedby the appellantwas not placed on record. (2) The factoryverificationreportsubmittedby the appellanthas beenwronglydisbelievedas false. A (3) There is no evidenceand materialto show thatthe appellant had carriedout examinationandcleared19shippingbills. CUSAANos.26/2011,27/2011&28/2011 Page2of13 (4) Mere telephone conversationsbetween the appellant and TejwantSinghdid not establishconspiracyor collusion. (5) JagmohanSinghhadwithdrawn/retractedhis statement. (6) The Commissionerhad let off and exoneratedand did not impose any penaltyon other departmentalofficersGorvinderSingh Sohal,B K Pabri and V. Valte. For the samereasoning,the appellant shouldnot be penalized. The tribunalignoredthe contentionsof the appellantonthis aspectas well as the replyto the show causenotice submittedby the appellantwithreferenceto the role of B K Pabri,V. Valte and Gorvinder Singh Sohal. 5. Tejwant Singh, as sole proprietor of Unicorn Industries, had exported microphonesvide 26 shipping bills by declaringtheir export value at US dollars 39.85 per piece. The total exports were valued at Rs.12,06,65,805/-andhe had availedof DEPB creditof Rs.1,67,55,800/-. The allegation,which has been acceptedby the tribunal,is that the said microphoneswere procuredand purchasedby TejwantSinghat Rs.16.50 per piece only i.e. for total value of Rs.28,74,588/-. The microphones were shownas exportedto a supplierin USA i.e. Omid TradeLinks,Los Angeles with the sole intent to fraudulently avail export incentives available under the DEPB scheme since the said incentive is based on the export value. CUSAA Nos.26/2011, 27/2011 & 28/2011 Page3 of13 6. In so far as wrongful claim of DEPB credit by Tejwant Singh is concerned the Commissioner and the tribunal have relied upon on following findings : (1) The exported, consignment was valued by the customs authoritiesin USA at US dollars 0.26 per piece and US dollars 1.38 per piece. (2) Tejwant Singh in his several statements has stated and admittedthat he had purchasedthe exportedmicrophonesfrom Anil Saxena at the rate of Rs.16.50 per piece. His subsequent statement that he had purchased these microphones from one Sudhir was unsubstantiated and false. (3) Anil Saxena had admitted that