Nirmal Agarwal Vs. Commissioner of Customs, Mumbai - Court Judgment

Excerpt:
1. the application is for waiver of deposit of penalty of rs. 5.00 lakhs. the applicant is absent and unrepresented. we have read the stay application, the appeal, and other relevant papers and also heard the departmental representative.2. the penalty has been imposed on the finding of the commis sioner that the applicant "conspired" with shirish gandhi, proprietor of shree krishna enterprises, to overvalue the garment that were exported by the latter in order to obtain drawback of duty in excess of that legally avail able. the contention of the applicant is that there is no evidence in support of this charge.3. while the departmental representative relies on the commissioner's order, we have prima facie to accept the applicant's claim ab correct.the commissioner accepts clearly that there is no direct evidence and goes on to describe what he calls "circumstantial" evidence. this evidence only indicates that the applicant conducted negotiation with the russian buyer of the garments and entered into a memorandum of agreement with shirish gandhi with regard to the export. the fact of negotiations with the buyers, or that the applicant entered into the memorandum of agreement (which the commissioner finds unique without a scrap of evidence in support) do not by themselves prima facie show that the applicant knowingly participated in any overvaluation of the goods with a view to obtaining drawback on the exported garments.

Judgment:
1. The application is for waiver of deposit of penalty of Rs. 5.00 lakhs. The applicant is absent and unrepresented. We have read the stay application, the appeal, and other relevant papers and also heard the Departmental Representative.

2. The penalty has been imposed on the finding of the Commis sioner that the applicant "conspired" with Shirish Gandhi, proprietor of Shree Krishna Enterprises, to overvalue the garment that were exported by the latter in order to obtain drawback of duty in excess of that legally avail able. The contention of the applicant is that there is no evidence in support of this charge.

3. While the Departmental Representative relies on the Commissioner's order, we have prima facie to accept the applicant's claim ab correct.

The Commissioner accepts clearly that there is no direct evidence and goes on to describe what he calls "circumstantial" evidence. This evidence only indicates that the applicant conducted negotiation with the Russian buyer of the garments and entered into a memorandum of agreement with Shirish Gandhi with regard to the export. The fact of negotiations with the buyers, or that the applicant entered into the memorandum of agreement (which the Commissioner finds unique without a scrap of evidence in support) do not by themselves prima facie show that the applicant knowingly participated in any overvaluation of the goods with a view to obtaining drawback on the exported garments.