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2016 (4) TMI 141 - CESTAT AHMEDABAD

2016 (4) TMI 141 - CESTAT AHMEDABAD - 2016 (343) E.L.T. 983 (Tri. - Ahmd.) - Imposition of penalties under sections 114 and 114AA of the Act 1962 - Illegal procurement and export of Red Sanders, a prohibited goods through CHA - Appellants actively engaged in this illegality - Except statement no other evidence found - Held that:- the appellant booked the containers from OAC India through M/s IAL Logistics (India) Ltd, Jaipur and stuffed the material in their factory and sent to Mundra Port witho .....

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in the container stuffed at the factory, but without line seal, Excise seal or any other seal, this is known as “buffer containers”, as it is shown as being stuffed at CFS but the same were already stuffed at the factory of the Exporter, then the shipping bill is filed and 2nd type of exports opted by the forwarder is where the goods arrive by the trucks and the same is stuffed at the CFSs at Mundra and then export Customs documents i.e. Shipping Bill is filed. - If the Appellant cleared the .....

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th transport on which partly filled containers were loaded and in these partly loaded containers, he himself used to get the goods stuffed in the containers with the help of crane and labour, that the crane and labour were also arranged by Shri Rameshwar Sharma; in addition the partly stuffed goods wre packed in wooden boxes with lassing and were not visible. Hence, the penal provisions would be invoked against the appellant. - As the appellant had not filed any appeal against the confiscat .....

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mpted to export the Red Sander, prohibited under the Act, 1962 and other laws, by mis-declaring the description of the goods in the shipping bills and therefore, imposition of penalty under Section 114 of the Act is justified. - Also as the appellant knowingly or intentionally used the shipping bills which is false or incorrect particular therefore, separate penalty is liable to be imposed under Section 114AA of the Act, 1962. Shri Suresh Sharma, employee of the export firm had knowingly inv .....

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r) ORDER PER: P.K. DAS These appeals are arising out of a common order and therefore all are taken-up together for disposal. The Hon'ble Supreme Court by Order dt.14.12.2015 in W.P. (Criminal) No.201/2015 (Anil Gadodia Vs U.O.I.) directed the Appellate Authority to hear the appeal and dispose of the same expeditiously. On 9th Feb. 2016, Appeal No.C/10170/2016 of Shri Anil Gadodia was listed in the regular list. The other two appeals were listed for hearing of application of Early Hearing of .....

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6229 dt.23.9.2013 and 7630622 dt.24.9.2013, declaring the goods Indian Polished Granite Slabs in respect of Shipping Bill dt.25.09.2013 and in other Shipping Bill Albeta Marble Slabs, through their Customs House Clearing Agency (CHA). Acting upon the intelligence, on 28.09.2013, the officers of the Directorate of Revenue Intelligence (DRI) called back the 5 containers attempted to be exported and examined the goods in presence of two independent witnesses, under Panchnama dt. 28.9.2013. It w .....

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und that the exporter and its employee Shri Suresh Sharma, were supplying Red Sanders to the Customer representative Shri Yodying, through the brokers, Shri Mayur Ranjan and Shri Anil Gadodia and all are actively involved in the illegal procurement and export of Red Sanders, a prohibited goods. The officers recorded statements of the said persons, amongst others and also seized records and documents. The officers also seized the Red Sanders and the Marble Slabs alongwith containers. 3. A show ca .....

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es 1992 and Appendix II of CITES. It has also confiscated 93.31 MT of Marble Slabs as per provision of Section 119 of the Act, 1962, with option to release the same on payment of redemption fine of ₹ 25 lakhs to the exporter. It has imposed penalty of ₹ 7,12,50,000/- each on Shri Mayur Ranjan@Vijay and Shri Yoding@Chan respectively under Section 114AA of the Act 1962. Penalties on Shri Ramehwar Sharma, Proprietor of M/s Eurro Exports, Shri Suresh Sharma, employee of the exporter and .....

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ctions 114 and 114AA of the Act 1962 separately. A penalty of ₹ 50 lakhs was imposed on Shri Anil Gadodia under Section 114AA of the Act 1962. Hence, all the appellants filed these appeals before this Tribunal. 4. The appeals were heard at length on 9th, 10th, 11th and today i.e. 12th February, 2016. Shri Pradeep Jain with Shri Ashish Batra, learned Advocates are appearing on behalf of Shri Rameshwar Sharma and Shri Suresh Sharma. Shri Hardik Modh, Ld Advocate is appearing on behalf of Shr .....

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ir factory in 5 containers procured from the Freight Forward Agency. As per the long standing practice, the Marble Slabs were loaded in the containers and cleared from the factory in buffer containers without sealing the same. The appellant had no knowledge of the alleged loading of Red Sanders in the containers. There is no evidence that the appellants had loaded Red Sanders in the containers. It is submitted that on 28th Sept 2013, the DRI officers visited the factory premises of the exporter .....

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ary 2014 before the Ld.CMM (Economic Offence), Jaipur. 6. The learned Advocates submit that there is no recovery of single gram of Red sander from the factory of the exporter and any other premises of the Appellants. There is no irregularity found in the accounts of the exporter. The Red Sanders were loaded in the containers, after the clearance of the goods of from the factory of the exporter. Thus, it is established that the appellants had not loaded the Red Sanders in the containers. The Comm .....

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ble that the appellant has gained anything for the alleged smuggling of Red sander. He further submits that the Commissioner (Appeals) had imposed penalty on the appellant on the basis of the statements, which were retracted immediately and it has no evidentiary value. He categorically submits that the appellant was not present, when the goods were loaded at their factory. It is submitted that without prejudice, the amount of penalty in both the Appellants are excessive. 8. The learned Advocate .....

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pellant was actually involved in clearing the goods from Jaipur or in export such goods. He particularly drew the attention of the Bench to Para 13.3 and 13.4 (last three lines) of the impugned order. None of the ingredients to invoke Section 114 AA of the Act 1962 is available against the appellant. Even, the words causes to be made in Section 114AA has to be direct or indirect nexus with the export of goods. In the present case, there is no evidence that the appellants were involved in illegal .....

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cause of the oral statement. He relied upon the decision of Hon ble Supreme Court in the case of Harischaran Kurmi Vs State of Bihar - (1964) 6 SCR 623 : AIR (164) SC 1184 : (1963) 52 ITR 443 (1964) 2 Cri Lj 344. 9. Without prejudice, he submits that even the appellant supplied the Red Sanders to M/s Eurro Exports, there is no material that the appellant had involved in the export of goods. Penalty under Section 114AA of the Act, 1962 is not warranted for supply of the goods within the country. .....

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it is stated that the retraction is nothing but afterthought. It is submitted that the investigating officers has acted as Adjudicating Authority, which is not permissible under the law. He submits that the appellant retracted the statements by letter dt.30.09.20913, addressed to the Additional Director General, DRI, from jail custody as revealed from the letter dt. 8.10.2013 of the DRI officers. The DRI officers searched the office, residence and godown of the Appellant on 28th Sept. 2013. But, .....

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exporter or any other person. 10. Dr.J. Nagori, the learned Authorised Representative appearing on behalf of the Revenue reiterates the findings of the Commissioner (Appeals). He submits that Commissioner (Appeal) had given detailed findings of the involvement of the exporter in the smuggling of Red Sanders. It is apparent on the face of record that the DRI officers detected five containers loaded with Red Sanders and the exporter filed the shipping bills mis-declaring as Marble Slabs . Thus, th .....

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se the evidentiary value as per Section 138 B of the Customs Act 1962, as the statements were voluntary nature and corroborated with the circumstantial evidence. He drew the attention of the Bench to the Para 13.4 of the impugned order, where the Commissioner (Appeals) discussed circumstantial evidence in detail. The retraction of the statements was replied by the DRI Officers immediately. He also relied upon the decision of the Hon ble Supreme Court in the case of Vinod Solanki (Supra) as the r .....

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iled by Shri Anil Gadodia, the Ld.Authorised Representative submits that it is clear from the statements of the co-accused that the appellants actively involved in smuggling export of Red Sanders. It is submitted that the appellant supplied Red Sanders to the exporter and he has received the payment from the Chinese persons, which is evident from their statements and therefore, no record was found from the godown of the appellant. He submits that Commissioner (Appeals) rightly observed that the .....

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nder. On 28.09.2013 and 29.09.2013, the DRI officers recorded the statements of the Appellant alongwith other co-noticees. According to the Revenue, the Appellant was the mastermind in the entire transaction and he supplied the Red Sanders which have been seized in the export containers. The Adjudicating authority observed that other than the statements of the co-noticees, there are no other evidences which could connect the Appellant with the alleged offending goods. It has been alleged that th .....

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n of containers at the port, appointment of CHA, declaration before the customs etc. It is the matter on record that he was also not named by the CHA or any clearing persons. Further, it has not been brought on record any evidence which shows the involvement of Shri Anil Gadodia in relation of smuggling of the Red Sanders wood. 127. It is the matter of fact on record that statement of Anil Gadodia was retracted at the first available opportunity. It is also found that Anil Gadodia was neither a .....

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nd in the absentia of such act penalty cannot be imposed. Similarly, it has been argued that he has been dealing with the red sander and other sanders wood for last several years in the name and style of his firm M/s Jiwan International and he has been purchasing the said goods under the auction held by the various Govt. Authorities in the state of Andhra Pradesh, Tamil Nadu etc. It is also observed that in the surprise search by the DRI no incriminating documents were recovered which shows the .....

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y material evidence as to how the material supplied by Anil Gadodia have reached into the factory of noticee M/s Eurro Exports. As it is already held that no goods have been packed in the factory of M/s Eurro Exports, therefore, it is not clear as to how Anil Gadodia have transported the goods if that has to be presumed that the goods found in the container have been supplied by Anil Gadodia. 129. Statement of none of the transporters have been there on record stating that the goods transported .....

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I/Prev/2014. 130. It has also been argued that no appeal against the said order has been preferred by Department and that order has been accepted. The principle of judicial discipline applies in the present case and in the absensia of any positivie over act qua the noticee the proceedings of any penalty cannot be initiated against him, accordingly, I drop the proceedings against him. 16. By the impugned order, the Commissioner (Appeals) strongly relied upon the statements, which were retracted s .....

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aipur or in export of such goods because the case against him is engaged himself in an organized crime of smuggling of Red Sanders to Mr.Lin of China with the help and association of other syndicate members Shri Mayur Ranjan, Shri Yodying, Shri Rameshwar Sharma & others and it was Shri Rameshwar Sharma who was exporting such offending goods in the guise of marbles for monetary consideration with help and aid of this supplier. The transporters, CHA and such other agencies were arranged by Shr .....

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t No.1 knowingly that they were to be smuggled. Another reason for holding that Shri Anil Gadodia was not involved in relation to smuggling of Red Sander is that he was neither a Proprietor or Partner of M/s Eurro Exports and he had no interest in their business. But, the Adjudicating authority failed to consider that Shri Gadodia knew that such goods, being prohibited, cannot be exported from India, and he also knew that Red Sander woods cannot be supplied by him to any person like Shri Rameshw .....

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h M/s Eurro Export s business is not a ground on which the Lower Authority could have held in his favour. As a licenced dealer of restricted goods like Red Sander woods, he was aware that such goods cannot be provided to any exporter when export of such goods was prohibited and therefore, not having any interest in the business of the exporter is irrelevant in the overall facts of the case. 13.4 The Adjudicating authority has relied upon various case laws for holding that retracted statements ca .....

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htaway discarded only because they were retracted later on. It is true that a retracted statement has to be taken with a pinch of salt and it cannot be relied upon as a conclusive evidence against the person who made such statement, but the facts of this case are very different. In addition to the statements of all the persons when the smuggling racket was admitted by all of Shri Rameshwar Sharma, Shri Anil Gadodia, Shri Mayur Ranjan, Shri Suresh Sharma, Shri Yodying etc, there are other evidenc .....

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Additional Director General, D.R.I. that he was taken in custody by the D.R.I. officers from Four Point Hotel at Jaipur on early morning of 28.09.2013 and he was kept in unauthorized custody and on 29.09.2013 evening, he was arrested. It was also stated that during the unauthorized custody, statements on 28.09.2013 and 29.09.2013 were recorded under duress, which were not given voluntarily. The Appellant retracted the statements. The Commissioner (Appeals) observed that the DRI investigating off .....

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00, Telefax 2223699 F.No.840/PR/19-XXIII/2013/1771 Dated: 08.10.2013 To Shri Anil Gadodia, Presently under Judicial Custody & ldged in Central Jail, Jaipur Through Jail Superintendent, Central Jail, Jaipur Gentleman, With reference to your letter dated 30.09.2013 addressed to the Additional Director General, Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi, wherein, it has been alleged that the officers of the DRI, Jaipur kept you in unauthorized custody and forcefully record .....

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enue Intelligence, Regional Unit, Jaipur. 18. On perusal of the above letter, it is seen that the investigating officer acted as an Adjudicating authority and decided that the statement was voluntarily tendered. It is also observed that the retraction is nothing but an afterthought. We are unable to accept such conduct of the investigating officers. It is well settled that the investigating officer cannot act as an Adjudicating authority. The investigating officer holds a pivotal roll. He is to .....

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t after recording the statements of the Appellant, who was arrested and in Central Jail, Jaipur, the investigating officer had decided that the retraction is an afterthought and had not taken any further statement and proceeded on the basis of the statement of co-accused. In the case of Tejwal Dyestuff Industries Vs CCE Ahmedabad -2007 (216) ELT 310 (Tri-Ahmd), the Tribunal observed that confessional statement would not put an end to the investigation and the Revenue officer should be careful th .....

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al statement would not put an end to the investigation and the Revenue Officers should be careful to ensure that they are not tricked out of a regular and detailed investigation by making strategic confessions which are retracted by preparing affidavits soon after they are made and which affidavits are again strategically withheld from the Revenue Officers, so that they become complacent and do not carry out a fuller investigation. It appears that the Revenue Officers in the present case have fa .....

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. There is no material available on record directly or indirectly that the Appellant supplied the Red Sander to the exporter. The investigating officer also had not interrogated him further to establish the truth. So, the Commissioner (Appeals) erroneously proceeded on the basis of replies of DRI officers on retraction of statement. 19. The Commissioner (Appeals) also observed that though the statements were retracted, not a single person has explained in the retraction how the containers are ta .....

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claimed their innocence in the alleged offence and it is the duty of the investigating officer to establish the truth. So, the findings of the Commissioner (Appeals) cannot be sustained. 20. The Hon'ble Supreme Court in the case of Vinod Solanki (supra), held that mere retraction of confession may not be sufficient to make the confessional statement irrelevant for the purpose of the proceedings in a criminal or quasi-criminal case, but there cannot be any doubt whatsoever that the Court is o .....

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ly made two statements before the Authorities under the Act, disclosing that all the transactions in the name of M/s. Sun Enterprises, Ahmedabad and M/s. Suraj Enterprises, Bombay relating to import of goods had been made by him and no import of goods had taken place in the name of the said firms. He is stated to have confessed that he was responsible for remittance of the foreign exchange worth US Dollars 11,400 and US Dollars 22,830. In view of the said purported confession, he was arrested fo .....

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and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accus .....

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t to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the b .....

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Bill of Entry and other documents or alleged remittances. He stated that confessions were not only untrue but also involuntary. 21. The Commissioner (Appeals) proceeded on the basis of call data and details were brought on record by the D.R.I. officers. Further, the statement of co-accused Shri Mayur Ranjan implicated the Appellant. Furthermore, the Appellant was having permit or licence for trading of Red Sanders and the huge stock was found unaccounted in godown. The learned Advocate submits .....

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of Shafeek P.K. (supra) observed that the Adjudicating authority relying on call data records showing telephone talk of the Appellant in Dubai with co-accused in India for smuggling of Red Sander would not be enough to conclude that the Appellant is involved in smuggling as the subject matter of conversation was not coming out from record. 22. The Commissioner (Appeals) observed that the Appellant had not asked for cross examination of the co-accused as per Section 138 B of the Customs Act, 196 .....

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Court in the case of Haricharan Kurmi (supra) observed that the value of co-accused statements was extremely weak and there would be no conviction without the fullest and strongest co-relation on material particulars. In the present case, there is no fullest and strongest corroboration on material particular available in the statement of co-accused and therefore, the imposition of penalty on the Appellant is not warranted on the basis of such statement. The Hon'ble Supreme Court in the case .....

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fference in the approach which the court has to adopt in dealing with these two types of evidence is thus clear, well understood and well established. It, however, appears that in Ram Prakash case, some observations have been made which do not seem to recognize the distinction between the evidence of an accomplice and the statements contained in the confession made by an accused person. An examination of the reported decisions of the various High Courts in India , said Imam, J., who spoke for th .....

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view that like the evidence of an accomplice, a confessional statement of a co-accused person can be acted upon if it is corroborated in material particulars. In our opinion, the context in which the said observation was made by this Court shows that this Court did not intend to lay down any such proposition. In fact, the other evidence against the Appellant Ram Prakash was of such a strong character that this Court agreed with the conclusion of the High Court and held that the said evidence was .....

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are Shri Mayur Ranjan and Shri Yodying, who were found to be involved in smuggling by the Joint Commissioner. These two persons have also initially admitted about the illegal smuggling and their role, but they have also retracted their statements in October 2013, but till the Joint Commissioner has held them guilty of illegal activity under the Act, 1962, then the same yardstick should apply to the Appellant. We find from the Adjudication order that these two persons have not submitted any defe .....

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of penalty on the Appellant on the basis of statements of these two persons cannot be sustained. 24. The learned Authorised Representative for the Revenue submitted that the Appellant causes to make illegal export of Red Sander and therefore, it would come within the purview of Section 114AA of the Act, 1962, which reads as under:- Section 114AA.Penalty for use of false and incorrect material. - If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, a .....

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ntentionally causes false and incorrect material in the transaction of any business, penalty would be not exceeding five times of the value of goods. So, the words causes to be made would have some nexus with the transaction of the goods of any business. In the present case, we find that there is no material available that the Appellant was involved in preparation of documents or signed by him relevant to export of goods. The Appellant is a licence holder for storage and selling of Red Sander .....

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fiscation. In the present case the role of the appellant, that too as per the statement of Shri Pradeep Dhond is that the appellant supplied the goods only in domestic area i.e. out of Customs area. It is undisputed position that during the movement of goods outside Customs area can not be liable to confiscation. Therefore, even if it is accepted that the appellant has supplied the goods to Shri Pradeep Dhond but at a place outside Customs area, the said goods is not liable to confiscation. Henc .....

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ned by him relevant to the export of goods. As discussed above the export was made by Shri Pradeep Dhond and the appellant was not found to be involved in export of goods though the goods was supplied by him to Shri Pradeep Dhond outside Customs area. 25. The Commissioner (Appeals) observed that the Appellant earlier also implicated on the alleged smuggling of Red Sander. In this context, the learned Advocate drew the attention of the Bench to OIA No.CC(A) Cus/328/2014, dt.29.05.2014 passed by C .....

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Adjudicating authority admitted in the Adjudication order that the goods were seized from the godown and had not been entered electronically or manually for export. Further, the trading of Red Sander in India is neither restricted nor prohibited. In fact, various Government agencies are selling Red Sander wood through auction. After considering the above findings of the Commissioner (Appeals) in that case, we do not find any force in the findings of the Commissioner (Appeals) in the present cas .....

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ly. In both the cases, the Adjudicating authority dropped the penal proceedings against the Appellant. 27. Shri Rameshwar Sharma, is the Proprietor of M/s Eurro Exports. On 28.09.2013, the officers of the Directorate of Revenue Intelligence (DRI) examined the 5 containers at Mundra Container Freight Station, attempting to export by M/s Eurro Exports vide Shipping Bills No.7656093, dt.25.09.2013, 7615545, dt.23.09.2013, 7628989, dt.24.09.2013, 7616229, dt.23.09.2013, and 7630622, dt.24.09.2013 re .....

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RI officers seized 14.25 MTs Red Sander and the declared goods. The export of Red Sander from India is prohibited. The Red Sander is listed under Appendix-II of the CITES (Convention of International Trade in Endangered Species of Wild Fauna and Flora) and as per Import-Export Policy 2009-2014, export of the same in any form is prohibited. The DRI officers visited the premises of the exporter at Jaipur and conducted search operation and also recorded statement of Shri Rameshwar Shama, Proprietor .....

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icers of DRI in connection with the seizure of 14.25 MTs of Red Sander at CFS Munda from the containers of M/s Eurro Export. 28. Show Cause Notice dt.24.03.2014 was issued, proposing the confiscation of the seized goods viz. Red Sander and Marble Slabs and also to impose penalties on the Appellants herein amongst others. The Adjudicating authority confiscated the 14.25 MTs of seized Red Sander absolutely and also confiscated 93.31 MTs of Marble Slabs and a redemption fine of ₹ 25 lakhs was .....

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acts narrated above, the investigation agency could not establish or show any evidence whatsoever against the noticee that he has dealt or has kept the wooden logs of Red Sander in his consignments which are seized at the port. From the series of events, it is clear that the goods were beyond the control of the noticee and at the time when the goods were received in the Customs Area and were checked by the Customs authority and confirmed about the contents as declared that is marble slabs and th .....

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ly had kept the said Red Sanders wood logs in the container after knowing the difference in weight and number of packages exported by M/s Eurro Exports. The allegation that forklift found in the factory premises of the noticees at Jaipur was used for stuffing Wood into the container is also not been verified and believed since the activity of the noticee from last several years as cleared from the documentary evidence placed before this office shows that the noticee was all through out involved .....

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left over wood or even small pieces of wood could not be found from such area. 29. By the impugned order, the Commissioner (Appeals) observed that the Adjudicating authority has relied upon the statements of the transporters in different context, but failed to appreciate that even the transporters have not reported any complaint of the opening of lock of the containers and about replacement and substitution of goods after the trailer left Jaipur. The Appellant had not filed any complaint or FIR .....

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irm were recovered from the residential premises of Shri Mayur Ranjan. It is revealed from the call data and the details were brought on record by DRI that the Appellants were involved in the smuggling with co-appellants and others. It is observed that the statements were retracted by these persons and DRI investigating officer have promptly replied to those persons, why their retraction was not believable. The Commissioner (Appeals) held that the Adjudicating authority has not given the due wei .....

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s in the export container was without their knowledge as evident from the record and circumstantial evidences. It is submitted that the DRI officers immediately searched their business premises on 28.09.2013 and no incriminating documents was found. The CHA and the transporter had not mentioned their names for loading of the goods. It is submitted the entire case was made out on the basis of statements of co-accused, which were retracted and has no evidentiary value as settled by various decisio .....

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fing and then seal the container with one time seal supplied by the Shipping Line and Central Excise and Customs. The other alternative course is that the exporter can send the goods to the Port/Inland Container Depot/Container Freight Station, where the goods are examined by the Customs officers and are allowed to be exported or otherwise according to the nature of the goods. In the present case, the Appellant booked the containers from OAC India through M/s IAL Logistics (India) Ltd, Jaipur an .....

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type of exports opted by the forwarder is when the goods is sent within the container stuffed at the factory, but without line seal, Excise seal or any other seal, this is known as buffer containers , as it is shown as being stuffed at CFS but the same were already stuffed at the factory of the Exporter, then the shipping bill is filed and 2nd type of exports opted by the forwarder is where the goods arrive by the trucks and the same is stuffed at the CFSs at Mundra and then export Customs docum .....

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rified the containers. The only submission of the learned Advocate is that a practice of the exporter to deliver the goods in buffer container. In our considered view, if the Appellant cleared the export materials without sealing the containers, the burden of proof heavily lies with them that the offending goods were not loaded by them. In the present case, the Appellants failed to prove that the offending goods were not loaded by them. In this context, we find from the impugned order that Shri .....

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e partly stuffed goods wre packed in wooden boxes with lassing and were not visible. Hence, the penal provisions would be invoked against the Appellant. This fact was not disputed by the Appellants and the presumption would be in favour of the Revenue. 33. The other aspect of this matter is that the Adjudicating authority confiscated 93.31 MTs of Marble Slabs under the provisions of Section 119 of the Act, 1962. It provides any goods used for concealing smuggled goods shall also be liable to con .....

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