- (1.)LEARNED counsel for the appellant states that she has obtained instructions. Appellant had deposited Rs. 1 lac and is ready and willing to deposit another amount of Rs. 1 lac. Penalty of Rs. 3 lac was imposed on the appellant which has been upheld by the Tribunal in their order dated 20th September, 2012. Having heard learned counsel for the parties, the following substantial question of law is framed: -
Whether the Customs, Excise and Service Tax Appellate Tribunal was right and justified in imposing penalty of Rs. 3 lacs on M.L. Chandra, though it has recorded that one Mr. Neeraj Jain was the main culprit.

(2.)AS per the findings recorded by the Tribunal, M/s. Amber Traders Company and M/s. Zigma International were involved in attempting fraudulent exports to claim duty drawbacks. The declared value of the consignments of M/s. Amber Traders Company was Rs. 44,49,200/ -, but its actual value was only Rs. 2,10,000/ -. On examination of the consignments, it was found that what was actually being exported was old lady dresses fabricated out of worn fabric. These were not properly stitched and were of inferior quality and were unfit for commercial sale. Thus, there was misdeclaration of goods and over -valuation to make undue gain under the Duty Free Relinquishment Certificate Scheme (DFRC). To this extent, the findings recorded by the Tribunal are clear and categorical and do not require any interference. There was misdeclaration of the export goods by M/s. Amber Traders Company. M/s. Amber Traders Company had not filed any appeal against the Order -in -Original before the Tribunal and they are not the appellant before us.
M/s. Amber Traders Company situated at Vishal Chamber 111, Section 18 had obtained IEC code and had a bank account in Jammu and Kashmir Bank, Sector -18, Noida. The firm was shown as a sole proprietorship of one Santosh Kumar Jain. However, in the account opening form, it was noticed that M.L. Chandra's photograph was described/noted as that of Santosh Kumar Jain. The respondents relied upon statement of M.L. Chandra under Section 108 of the Customs Act recorded on 31st January, 2004, in which he had accepted his involvement in fraudulent export of rags in the guise of readymade garments on the advice of Neeraj Jain. He had stated Neeraj Jain was the investor and he was to share profit with Neeraj Jain. 20% being the appellant's share.

(3.)IN the order written by the judicial member, there was no reference to the retraction made by M.L. Chandra on 5th October, 2004. In the order written by the Technical Member, this aspect has been noticed and it is recorded that the case and alibi of M.L. Chandra was different. M.L. Chandra had argued that the application filed with DGFT and the bank account designated to get export proceeds did not show his photograph. There was nothing on record to show link between M.L. Chandra and M/s. Amber Traders Company except for the statement dated 31st January, 2004, which was retracted on 5th February, 2004.