Jagmohan Singh v. Commissioner of Central Excise Adjudication

M.L. MEHTA, J. Y a APRIL 27, ?OLLIKA 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. 1: [Nr rhlF i{nGH COUR-f qF DELHI AT NIEW DELI-{I . ct[sAA ct05AA . c[.05A4 . J . APPELLANT throuqh : Mr. Navneet Panwar, counsel for the appellant. VERSUS CoMMISSJoNER OF CENTRAL EXCISE (Adjudication) throuoh: Mr. Mukesh Anand; ftt;'?"i.8:ltl 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 :

¶1Whether Reporters of Local newspapers may be allowed to see the Judgment?

¶2To be referred to the Reporter or not?

¶3Whdther the Judgment should be leported in the Digest? A.K._S'tKRl, [. (ORAL] The appellant has preferred these appeals against the Final Order dated 15.3.2010 $assed by the Central Excise and Service Tax Appellate Tribunal (CESTAT) whereby his appeal befoie the CESTAT [Cus. A,A. Nos, 1/2011,21201.1. &31201'1' Page L ofI ( lx + PROilIOLIhICED Oru : 22.+.20L1 NIo. L/20n I & C.M. t{o' tr 499rcALL No. 2/201L & C.M' fso. 3.501/2CILL l$o. 3/2@LlL & C.M. [rno' n 5O4lzgLL JAGMOHAN SINGH .J a \) A arising out of the order-in-original dated 30.9.2005 has been dismissed. By that order-in-original, the appellant was imposed with penalty of { 20 lacs under Section 114 of the Customs Act. Befo.re inflicting this penalty, a show-cause notice dated 30.r2.2003 was issued to trim in .esp".t of such an export effected by M/s Unicorn lndustries, G-22llA, Rajouri Garden, New Delhi, and certain acts of commission and omission were imputed against the appellant;as well. The aforesaid penalty has been sustained by the impugned.order, 2, In this appeal, the challenge to the order of the Tribunal is on the ground that though the Tribunal has specifically taken note of the statements made by the appellant in pa ra 28 of the impugned order ! but the statements are not dealt with and no conclusions/findings are arrived at by the GESTAT qua the appellant. lt is argued that by the impugned order, 17 appeals were decided and it appears that by in adverterlce, omissions or otherwise, the case of the appellant had not been eiamined before dismissing his appeal.

¶3In p? ra 28 of the impugned order, foilowing statements made by the appellant are noted: "it was submitted on behalf of the Appellant sri Jagmohan singh that the statement recorded from him on 15,10.2ool being under force and coercion as well as physical torture was retracted on 16.10,2001, nothing implicates the appellant to charges. The Appellant being merely engaged in issuance of , Airway Bills through M/s eedi & co., hal -booked space for r . [Cus. A.A. Nos, 1/201I, Z/2.01,I &3 /Z0II pase 2 of B v A cargo through IATA ,had not abetted commitment of tlre offence alleged againlst Exporters. He was not a CHA and never acted as such. He was neither "G" card.holder"hor 'H" card holder and had no access to customs area. He was n'ever involved in examination, processing of the documents of export or arrange.d for inspgction of goods; He had not involved himself in the exports. He being neighbor of Sri Tejwant Singh cannot be implicated to charge without any basis of connivance and conspiracy with exporters to cause loos to revenue by any unreasonable claim of DEpB.credits. He was no way connected with procurement of goods by exporters. None of the statements recorded has implicated the appellant. Norie of the ingredients of Section 114 being present, 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 and coercion as well as physical torture which was specifically retracted on 16,10.2001 and, therefore, there wa's nothing to implicate the appellant of the charges leveled againsl him. '(ii) The appellant was merely engaged in issuance of airryay bilts through M/s Bedi & co. and had booked space through cargo IATA and had not abetted the commitment of offence al leged agai nst exporters.

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

(iv) He was never involved in examination, processing of ' documents of export and never arranged for inspection of goods.

(v) Sh. Tejwant Singh was his neighbor and merety on that , basis, the appellant could not have been implicated in the case.

(vi) He was no way concerned with the procurement of goods by exporters and none of the s.tatements recorded had implicated 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 in this case. fCus. A.A. Nos. 1/2011,,2/2011, &.3/Z0II paee 3 of B {: : \ I \ tI a 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 clearly.reflected that each and every statement of the appellant is duly 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 [Cus. A.A. Nos. 1/2011,2/201I &3/201L Page 4 of B ^ 'examination of Cargo, In this statement, he further, admitted an irregular/illegal manner in which the cargos were cleared. He specifically admitted that under the instructions of Sh. Tajwanf'Singh, he was writing t[e shipping bills to read as "Fixation of DBK in terms bf Circular No.6Bl97-Cus dated 02.I2.7997 subject to production of payment of CVD/CEX duty"

¶6First contention of the appellant, as noted above was that he had retracted the statement dated 15,10.2001 on 16.10.2001. Nothing '.was argued by the appetlant insofar as his aforesaid , statement rBcorded on 29.8.20IO is concerned. Further, we find that this ,statement was nbt retracted either. In these circumstances, the argument of the appellant that he had retracted his statement dated

15.10.2001 on 16.10.2001 ,goes into nothing rryhen we find that the Tribunal had not relied upqn such statement on 15.10.2oor but had discussed the case of the appellant based on the statement recorded on 29.8.200L which had never been retracted, Not only this, the Tribunal has also discussed other evidence which corroborated aforesaid statement of the appellant. Discussion to this effect can be found in para 57'of the impugned order where it is mentioned that Sh. Tejwant Singh in a statement had accepted and confirmed that the appellant was his neighbor who issued airway bills for cargo clearance. [Cus. A.A, Nos. L/2011,212011, &3/2011 Page 5 ofB I /o a 'l . Even. Inspector Rajeev Kumar Sharma in his statement had corroborated that all the concerns were represented by Sh. Jagmohan Singh (appellant h'erein) for clearance and he used to do liaison work with customs for these firms for conducting market enquiry relating to microphones. Discussion in this behalf can be found in para 68 of the order of the Tribunal.

¶8lt is also mentioned that on 29.8.2OOI after the. statement was recorded,.!he appellant had stopped appearing. The Department had fiteO a complaint against him in the Court of learned ACMM, Patiala House but he did not respond to various summons issued against him and did not appear to give evidence. Therefore', non-bailable warrants were issued a,gainst him and he was declared proclaimed offender. However, the appellgnt has now started appearing in those proceedings. "b. On the basis of the aforesaid discussions, which specifically concern 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 as material facts and evidence noticed hereinbefore having given rise to investigation followed by overseas enquiry proved questionable . conduct of appellants. Extensive enquiry was done to ascertain various aspects including indentify of the suppliers of Microphone and Fuel Pump Diaphragm. The persons involved in the export tendered evidence proving various circumstances leading to export of overvalued goods. Oral evidence tendered was well I [Cus, A.A.'N os. \/201L,2/2011. &3/201.1 Page 6 ofB t/ 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. '

¶76Deceitful 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 for 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 available 'on record were sufficient enough to hold all acts 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."

¶10lt 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; he played his role on specific instructions was deialing with the Customs Officers of in Sh. Tejwbnt Singh; and he respect of export of these [Cus. A.A. Nos. 1/2011,2/2011' &3/20t1 Page 7 ofB I> 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.

¶11We, thus, find no merit in these appeals and the same are, accordingly, dismissed alongwith pending applications. APRIL 27, 2OLN. KA M.!-. MEE-frTA, J. t [Cus. A.A. Nos. 1/201-1.,2/20L1, &.3/Z1Lt Page B ofB

? + IN THE HIGH COURT OF DELHI AT NEW DELHI CUSAA No. 2/2Ot 1 CUSAA No. 3/20L1 JAGMOHAN SINGH PRONOUNCED ON: 27.4.?OLL & C.M. No. L5OL/2OI.1 & C.M. No. L5O4|?OLL throuqh : Mr. Navneet appellant. VERSUS . . . APPELLANT Panwar, counsel for the COMMISSIONER OF CENTRAL EXCISE (Adjudication) . . , RESPONDENT throuoh: Mr. Mukesh Anand with Mr. R.C.S. Bhadoria and Mr. Shailesh Tiwari, .counsel for the respondent. CORAM :- HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE M.L. MEHTA 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? ' 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, I. (ORAL) For orders, see CUSAA No.1 of 2011. 3.\<-/A