Case Law Details
Smt. Sushma Vs Commissioner of Customs (CESTAT Delhi)
Conclusion: Penalty against a Late Customs Inspector for the charges for abetment for fraudulent export of goods was deleted as there was no evidence produced by the department which might prove that assessee ever instigated or conspired or intentionally aided Shri Sajjan Kumar to fraudulently export the hand woven carpets to traders in different countries and to take as high as 12 Crores of drawback in DAPL and higher drawback in other companies as well.
Held: In the present case, penalties under Section 114 (iii) & 114 AA had been confirmed by the Adjudicating Authority based on the facts that both the firms which were inquired by assessee were not competent to give the rate of the sample of the carpets taken from alleged exports being found to be the companies of Shri Sajjan Kumar only and none of them being the exporter of carpets on the date of market inquiry. Appellant, as inquiry officer, was not diligent enough to gather relevant details and such negligence on part of assessee amounted to dereliction of his duties but not alleged abetment. Accordingly, a penalty of Rs. One lakh was imposed on the appellant after the conclusion of the proceedings. It was held that there was no evidence produced by the department which might prove that assessee ever instigated or conspired or intentionally aided Shri Sajjan Kumar to fraudulently export the hand woven carpets to traders in different countries and to take as high as 12 Crores of drawback in DAPL and higher drawback in other companies as well. There was no evidence that appellant has been the beneficiary of these amounts or part thereof. From the documents and statements on records it was very much apparent that it was Sajjan Kumar who with the help of other persons, his employees was over-invoicing the value of carpets meant for export. Sajjan Kumar admitted same vide his statements. There was no mention of any involvement of assessee either in the form of instigation or conspiracy to aid the impugned fraudulent export. Abeting was something much more than the negligence or dereliction of duties. The noticed negligence on part of the appellant unless and until goes back to the stage of initiation of crime, same could not be held to the abetment either instigation or conspiracy. The improper and amateur act of market survey in the given facts and circumstance, could not be held as aiding Shri Sajjan Kumar to make fraudulent export of carpets. Though the Adjudicating Authority below had taken a plea that assessee in his statement had admitted for the alleged offence but the perusal of the document on record showed that the admission of assessee was only to the fact that the inquiry conducted by him with his Co-Inspector Naresh Kumar was an improper inquiry that too after it was brought to his notice that both the firms inquired by them were found by DRI to have been controlled by same Sajjan kumar who had been investigated in the impugned matter. The said statement had wrongly been considered as an admission of assessee for abeting fraudulent exports made by Sajjan Kumar and for heavy amount of draw back being claimed by him.
FULL TEXT OF THE CESTAT DELHI ORDER
Present appeal has been filed by one Shri Subhash Chand, the then Inspector, Customs (now deceased). His widow Smt. Sushma has been substituted as appellant vide order dated 26.03.2021 pursuant to her application praying her impleadment being the legal representative of the deceased. The Order-in Appeal dated 24.05.2019 has been assailed in the present appeal. The relevant factual matrix for the purpose is as follows:-
Please become a Premium member. If you are already a Premium member, login here to access the full content.
Author Bio
