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Judgment
Manmohan, J.—Present writ petition has been filed with the following prayers :-
"a. Issue a writ in the nature of Certiorari or any other appropriate writ, order or direction to the respondent No. 1 Authorities for quashing recovery proceedings qua the petitioner initiated under impugned Recovery Notices dated 15-12-2012 and 14-11-2012 (Annexure P-1 and Annexure P-7 refers);
b. Issue a writ in the nature of Mandamus or any other appropriate writ, order or direction to the respondent authorities to terminate the recovery proceedings qua the petitioner;
c. Pass ad interim ex parte Order in terms of prayer at (a) and (b) above.
d. Issue Rule nisi in terms of prayer and confirm the same after hearing the parties;
e. Award Cost of this writ petition; and
f. Pass such order and further order(s) or direction(s) as this Hon''ble Court may deem fit and proper in the facts and circumstances of the case and in favour of the petitioner?"
The relevant facts of the present case are that on 5th August, 1994 petitioner filed an application for allotment of an Import-Export Code with the office of Joint Director General of Foreign Trade.
It is the petitioner''s case that it received the Code only on 17th September, 1997 and during the interregnum one Mr. A.K. Singh claiming himself to be Proprietor of M/s. Vikas Exports and after giving the same address as that of the petitioner''s firm opened a current account bearing No. 49057 with the Oriental Bank of Commerce, Air Force Station, Palam, New Delhi branch and then effected certain exports and availed drawback against the same.
In 2000, Director of Revenue Intelligence (for short ''DRI'') issued summons under Section 108 of the Customs Act, 1962 to M/s. Vikas Exports, which is when the petitioner became aware of the fraud.
The DRI in its investigation did not find any fault with the conduct of the petitioner.
The Assistant Commissioner, Customs vide order dated 29th June, 2005 adjudicated the show cause notice wherein he also did not return any finding or attribute any misdemeanour on the part of the petitioner. In fact, a categorical finding was given that Mr. A.K. Singh in the guise of petitioner''s firm M/s. Vikas Exports perpetrated the fraud on the Revenue.
Vide the said order, penalty was imposed upon Mr. A.K. Singh and Mr. A.S. Kotwal, Manager, Oriental Bank of Commerce. In addition, recovery of drawback amount totalling to Rs. 26,54,929/- and penalty of Rs. 5,00,000/- was imposed on petitioner''s proprietary firm, that means, M/s. Vikas Exports.
In pursuance to the Order-in-Original dated 29th September, 2005, recovery notices dated 14th November, 2012 and 15th December, 2012 were issued to M/s. Vikas Exports, Proprietorship concern of the petitioner, which propelled the petitioner to approach this Court.
Ms. Shikha Sapra, learned counsel for petitioner submits that both in the investigation by DRI and the Order-in-Original there is no finding against the petitioner. She states that even the Order-in-Original identifies Mr. A.K. Singh, Mr. Kamal Gupta and Mr. A.S. Kotwal as Master minds behind the export fraud committed through the aegis of Vikas Exports.
Ms. Sapra states that the account opening form contained the address and photograph of Mr. A.K. Singh claiming to be the Proprietor of M/s. Vikas Exports clearly establishes that petitioner had no connection or role whatsoever in the entire export or availment of illegible drawback.
On the other hand, Mr. Kamal Nijhawan, learned Senior Standing Counsel for respondent No. 2 contends that it is inconceivable that though the IEC Code was allotted in favour of petitioner''s firm M/s. Vijay Exports on 24th November, 1994, yet he had no knowledge of the same. Mr. Nijhawan states that receipt of IEC code as claimed by the petitioner in September, 1997 is unbelievable.
At the rejoinder stage, Ms. Sapra has handed over in Court the alleged original registered envelop as well as IEC Code. The post office stamp seems to bear the date 28th September, 1997. After perusing the original envelope as well as IEC Code, the same have been returned to learned counsel for petitioner.
Having heard learned counsel for the parties, this Court is of the view that it is a case of identity theft and, therefore, petitioner is not liable for alleged actions of Mr. A.K. Singh and others.
In the opinion of this Court, learned counsel for petitioner has rightly pointed out that both in the investigation by DRI as well as the Order-in-Original there is no finding against the petitioner. The operative portion of the Order-in-Original reads as under :-
"A.K. Singh defrauded the Government revenue through export of highly overvalued ready-made garments in the name of M/s. Vikas Exports, which was actually not his firm. He succeeded in this smuggling activity with the connivance of A.S. Kotwal, then Manager of Oriental Bank of Commerce, Air Force Station, New Delhi and Kamal Gupta, who helped A.K. Singh in opening of current account in the name of M/s. Vikas Exports, which was actually owned by one Vikas Narang, R/o, 1112/18, Naiwala, Karol Bagh, New Delhi. Therefore, it appeared that goods exported vide 17 Shipping Bills as mentioned in Annexure-A were liable to be confiscated under Section 113(d) and 113(i) of the Customs Act, 1962 read with Rules 11 and 14(2) of the Foreign Trade (Regulation) Rules, 1993 and Section 50(1) of the Customs Act, 1962."
It is pertinent to mention that on 7th February, 2014 this Court had asked Mr. Kamal Nijhawan to verify whether any criminal proceeding had been initiated by the Customs Department against Mr. A.K. Singh, the alleged master-mind behind the export fraud. On 22nd May, 2014, Mr. Nijhawan had handed over a copy of the letter dated 20th February, 2014 written by Deputy Commissioner (SIIB), Office of the Commissioner of Customs ICD, Tughlakabad, New Delhi, which stated that no criminal proceeding had been initiated against Mr. A.K. Singh of M/s. Vikas Exports.
This Court finds it strange that while the Department did not initiate any criminal proceeding against Mr. A.K. Singh, it now wants to penalise the petitioner who is also a victim of the fraud.
Consequently, present writ petition is allowed and recovery proceedings initiated only against petitioner under impugned Recovery Notices dated 14th December, 2012 and 15th December, 2012 are quashed. Accordingly, writ petition and application stand disposed of.