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2023 (11) TMI 622 - AT - CustomsLevy of penalty u/s 114 (i) of the Customs Act, 1962 on Merchant Exporter - smuggling of Red Sanders - mis-declaration of exported goods viz. food articles such as wafers, cumins seeds, far far, roasted matti, mamra etc. stuffed in container, which after sailing having recalled by the officers of DRI, contained 387 logs of Red Sanders - prohibited goods or not - HELD THAT:- It is a matter of record that One-time bottle seals of the central excise were affixed after stuffing of container at the ware house/factory of the appellant which has been found untampered upon examination and recovery of wooden logs prima facie appearing to be red sanders. On this backdrop, an apparent case of mis-declaration of exported goods by the appellant is appearing on record. In this regard, it is noticed that jurisdictional central excise officers namely Shri Devendra Singh – Inspector and Smt. DaminiLakhia have signed examination report of the goods stuffed in which para 13 states net weight of the stuffed container as 16610 Kgs and gross weight 16820 kgs; the report also states Bottle seal bearing No. TAS278658 and central excise seal bearing No. 0031757; the officer of Customs namely Chavda A. R. has signed the shipping bills and permitted exports after verification of the shipping bills which also states the aforesaid details. The above-named officers of department were responsible for supervising the stuffing of goods and affixing the seal and verification of the cargo as per the shipping bill, however, they have not been made party to show cause notice nor they have been examined by the adjudicating authority in terms of section 138B of the Act. Similar observation of tempering of seal and substitution of cargo enroute are noticed in the case of NILESH KATIRA AND M/S. MARATHON CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, NAGPUR [2022 (3) TMI 238 - CESTAT MUMBAI] and in the case of MAHESHWARI ROCKS (I) PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI [2009 (10) TMI 803 - CESTAT CHENNAI]. It is observed that miscreants looking for bonafide exporters for booking a container to load the red sanders from a regular exporter of low value food items to ensure smooth clearance is not unknown. The documentary evidences viz. stuffing of cargo in form of Annexure/examination report verified and signed by the central excise officers and verification of the shipping bill by the officer of Custom would prevail over the aforesaid oral statements. Consequently, no case of mis-declaration can be said to have been established on the part of appellant. Red Sanders have been found from the same container bearing no. GATU 8007720 and seal bearing no. TAS278658 and Excise Seal No. 0031757 found to be intact, is evidence of occurrence of illegal attempt to export red sanders, however, person who carried out the said act is not identified; particularly, in view of fact that penalty has also been imposed on person called Shailesh from Chennai who is stamped as kingpin in export of red sanders, however, investigation could not trace him. It is also observed that no evidence put forth as regards antecedents of the exporter of irregular exports in the past, nor there is any evidence of appellant’s role in procurement of red sanders; as such there is no evidence of appellant’s connection with such activities - Since the role of the appellant in the illegal attempt to export red sanders is not established with cogent evidence, penalty upon appellant, imposed under section 114(i), is liable to be set aside. Penalty set aside - appeal allowed.
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