TMI Blog2024 (1) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... was extended to the appellant. Learned Adjudicating authority cannot brush aside the request for cross-examination of the relied upon witnesses/investigating officers. If for any reason the cross-examination of the witness cannot be extended then the adjudicating authority has to intimate the appellant about such rejection by a separate letter as is now settled legal position. It is well settled that a person cannot be penalized merely on the basis of a circumstantial evidence and assumption and presumption and ignoring the provisions of law. From the records of the cross-examination of Shri Mahendra Jain, Proprietor of M/s Nidhi Marble, Udaipur, Shri Naresh Bolya, Managing Director of M/s Parth Natural Stones Pvt. Ltd., Udaipur, Shri Sunil Kumar Agrawal, Manager Accounts of M/s Madhusudan Marbles Pvt. Ltd., Udaipur and Shri Mukesh Kabra, Director of M/s Madhusudan Marbles Pvt. Ltd., Udaipur, it is found that the appellant had absolutely no role to play in the alleged smuggling of red sander logs - there is no evidence to show that the appellant had actually assisted in loading red sanders or tampering the container or they were even aware that red sanders had been filled into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lakhavat against the Order-In-Original No. AHM-CUSTM-000-COM-001-17-18 dated 31.05.2017. In the impugned order the Ld. Commissioner of Customs, Customs House, Navarangpura, Ahmedabad had adjudicated a Show Cause Notice dated 31.12.2014 issued to confiscate seized logs of red sanders, green marble, Nilgiri logs, the Trailor, two trucks in which the said goods had been stuffed and the conveyance used to transport the containers and to penalise various persons involved in the attempt to unauthorizedly export red sander logs in contravention of the prohibition. 1.1 On the basis of an intelligence, a surveillance was kept outside a warehouse located at Piplaj Cross Roads, NH8, Opposite Ganesh Marble, Village- Dimral, Nadiad on 03.07.2014. On verification of the warehouse on 03.07.2014 at Nadiad, it was noticed that one container placed on trailor loaded with goods for export and two trucks were found at premises. It was found that the container was stuffed from the premises of M/s Parth Natural Stone Pvt. Ltd. (100% EOU) with polished green marble slabs. The container was affixed with bottle seal by central excise officer of Range-II, Udaipur in order to get them exported through IC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sander Wood Logs and ordered confiscation of the trailer/trucks / Marbles with an option of redemption on payment of a fine and also imposed penalties on all the noticees. The penalty on the present appellant is Rs. 50,00,000/- and of Rs. 5,00,000/- imposed under the provisions of Section 114(1) and Section 114AA of the Act. Ld. Commissioner also ordered for the absolute confiscation of the amount of Rs. 7,50,000/- recovered from the residence of Appellant under the provisions of Section 121 of the Act. 1.5 As regards the appellant involvement in the transactions inviting penalties on him and confiscation of cash, the Commissioner has found as follows :- He was instrumental in moving the container to the Nadiad warehouse for the replacement of red sander logs in connivance with Mr. Rajesh Subramaniam and Mr. Abdul Jaffer. It is already established that the retraction of his statement is on evidentiary value given the circumstantial evidences surrounding the exports of red sander logs. In view of the above, he has concerned himself in the export/attemped export of prohibited goods. Accordingly, Mr. Hanumansingh Lakhavat is liable for penal action under the provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity has failed to consider the retraction affidavits and detailed submission of the appellant. He has also failed to consider the records of cross examination/ examination of the exporters (shippers) who were examined during the course of adjudication before the Ld. Adjudicating Authority. 2.3 He further submits that in para 23.1 of the show cause notice it is contended that the appellant had opened the container by removing the rivets of handles, removed the original cargo i.e marble slabs and concealed red sanders in the marble slabs. However these contentions of the show cause notice which are the basis for proposing imposition of penalty on the appellant herein are extremely far from truth. As such, they are in contradiction to the case of the DRI itself. It is so because, on one hand, the case of the DRI is that the appellant herein had never personally visited the godown premises at Nadiad where the alleged illegal activity if replacing marble slabs with red sander logs was taking place, whereas on the other hand, a foundation of proposing imposition of penalty on the appellant herein is made on such contradictory allegations. 2.4 He also submits that only activity whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Ld. Adjudicating authority, he had miserably failed to appreciate the said retractions. 2.8 As far as the amount of Rs. 7,50,000/- being seized from the appellant s residence is concerned, he submits that the same was withdrawal from the Banks by the appellant and submitted the copy of Bank statements. The Learned Adjudicating authority has failed to appreciate that Rs. 7,50,000/- were withdrawn from two banks accounts of the appellant for some renovation work which was being carried out the residential house of the appellant herein. Ld. Commissioner ignored the bank statements and confiscated the cash amount. It may be appreciated that there are no evidence to support allegation that Rs. 7,50,000/- being seized were received by the appellant towards consideration for illegal activity of export of red sander logs. The said amount is officially withdrawn by the appellant herein from his bank accounts. 2.9 He further submits that during the cross-examination, the exporter of Marbles has accepted that Appellant carried out business of making available containers on rent to them. Appellant do not give any instructions regarding the quantity of marble to be stuffed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed legal position. It is well settled that a person cannot be penalized merely on the basis of a circumstantial evidence and assumption and presumption and ignoring the provisions of law. 4.1 We find that Appellant is proprietor of M/s H.R. Containers and M/s Apex Containers, Udaipur. Appellant arranged empty containers from various shipping lines to exporters. In each and every case, appellant provided KYC details to the shipping line. Thereafter, a delivery order is given by the shipping line to the appellant. In the said delivery order all the details such a details of shipper, port of loading, various charges, vessel details, port of discharge, etc, is mentioned. The shipping lines send the empty container to the concerned CHA. In case where the transport is arranged by the appellant, appellant s transporter shall pick up the container from the CHA, who would be allowed to remove container from the port to the factory of the shipper/exporter. Appellant herein was in the business of providing containers to various exporters who are in need of containers since the year 2008. 4.2 In the present disputed matter there are three shipper viz,. (i) M/s. Parth Natural Stone Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Shippers/ exporters. It is not the case that the appellant herein had collected exports proceeds from the said foreign buyers and given it to the shippers. It is not the case that appellant herein was given commission for sale of export goods by the shipper. It was not the case that the appellant herein had physically remained present at the time when container were being loaded with the green marbles, further it is not the case that the these containers were transported in truck belonging to the transporters on the instance of appellant herein. During the cross examination exporter have clarified and accepted that the appellant only does business of providing containers in rent. They have also admitted that the appellant do not give any instruction regarding the quality of marble to be stuffed in a container. 4.5 We find that there is no evidence to show that the appellant had actually assisted in loading red sanders or tampering the container or they were even aware that red sanders had been filled into the container somewhere on the way. Under these circumstances, in this case, apparently penalty has been imposed on the appellant on the ground that he has abetted in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not acceptable then the same could have been countered on the basis of some positive evidence and cannot be brushed aside on presumption. It has been the subject matter of various decisions laying down that onus to prove so is upon the Revenue and is required to be discharged by production of affirmative, tangible and positive evidences. One such reference can be made to the decision of the Tribunal in the case of Pandit D.P. Sharma v. CCE, Calcutta-II [2001 (137) E.L.T. 692 (Tri.-Kolkata)], wherein after taking note of various decisions, the seized currency was released in the absence of any evidence to the contrary. The said decision of the Tribunal was affirmed by the Hon ble Supreme Court when the appeal filed by the Revenue was rejected in the case of Commissioner v. Pandit D.P. Sharma [2003 (157) E.L.T. A201 (S.C.)]. To the same effect is another decision of the Tribunal in the case of S. Kotteswaran v. Collector of CE (Customs), Madras [1997 (91) E.L.T. 435 (Tribunal)]. It was held in the said decision that mere non-accountal as to receipt of money is not sufficient so as to hold it as sale proceed of smuggled silver, the same is not liable to confiscation under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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