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TMI Blog2017 (10) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... that the sandalwood in question was said to have been obtained from one M/s.Divya Impex Corporation, Hyderabad, which firm procured the sandalwood under Certificate of Procurement dated 07.02.1992 issued to them by the Chief Conservator of Forest, Andhra Pradesh ( issued Certificate of Origin by the Principal Conservator of Forest vide letter dated 05.08.1992). The said authority i.e., Principal Conservator of Forest, informed that no such certificate was issued by their Office. On conclusion of investigations, the Office of the Special Intelligence Branch, Customs, issued a show cause notice dated 11.09.1992 proposing confiscation of the 10 MTs of sandalwood under Section 113(d) and 113(i) of the Customs Act, 1962 besides imposition of penalties on the firm and its erstwhile partner, Mr.M.Manickam. After receipt of the show cause notice, the Commissioner of Customs, vide Order-in-original No.146/1992 dated 21.10.1992, ordered for absolute confiscation of 10 MTs of sandalwood (worth about Rs. 21,20,000/-) u/s. 113(d) and 113(i). A penalty of Rs. 2,00,000/- was imposed on the appellant/firm under Section 114(i) of the Customs Act, 1962. 3. Aggrieved by the same, the appellant prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri R.S.Ramanujam of Kodur, A.P. patta lands S.No.818/1, 1504/1, 1491/3, 684/2-a did not exist in the survey records maintained in the Village Administrative Office, Rajampet. 29. It is further seen from the records that the impression of Forest Dept. seal was not found on the wax seals on the gunny bags containing the Sandalwood Chips for which Shri.Manickam of M/s.J.J.Trading Corporation, Madras had no explanation. 30. From the evidence enumerated above, it is crystal clear M/s.Divya Impex Corporation is a fictitious firm not in existent. The documents as to the source of origin and transport of the subject sandalwood were fabricated to cover the smuggling. I do not therefore find any substance in the argument of the Advocate that COP was forged one is baseless. Further, I observe that Shri.A.Sivan was convicted by the Hon'ble Addl.Chief Metropolitan, Chennai on 23.03.2004 in a case in RC/2/S/93 filed by the CBI against M/s.J.J.Trading Corporation, Shri.Manickam and Shri.A.Sivan, Partners. In the prosecution, Shir.A.Sivan admitted the charges levelled against them. Therefore, the contention that they are not aware of proceedings against M/s.J.J.Trading Corporation is tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Appraising Manual, Volume II in further support of my above finding: "In a conference between the customs and the licensing authorities held in May 1978 at Bombay, the provisions of Transitional Arrangements under paras 207, 210 of 1977-78 were discussed with reference to extension of letter of credit after the crucial date. A view was held that as long as the letter of credit was opened before the critical date, mere extension of the date of shipment without change in value, quantity and description of the goods in the letter of credit was not of material importance and the restriction should not apply, as the original letter of credit remained substantially the same. However, Chief Controller of Imports & Exports, New Delhi, held that the benefit of pre-ban-commitment should not be given in such cases, as this would only open the gates in more inflow of banned and canalised items. (Letter No.IPC/5/5/78 dt: 19.07.78) The position is that when the letters of credit were so amended, it should be taken that there was no irrevocable letters of credit earlier, and that in such cases the restriction imposed should be applicable". In the light of the above, the exporters' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a modus operandi wherein the name of a non-existent fictitious firm was brought in documents were prepared in that name so that if any stage the fraud is detected by law enforcing agencies, then they would not be traced." 5. Accordingly, the original authority again ordered for absolute confiscation of 10 MTs of Sandal Wood Chips valued at Rs. 21,20,000/- under Section 113 (d) and 113 (i) of the Customs Act, 1962 and imposed a penalty of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) under Section 114 of Customs Act, 1962 on M/s.J.J.Trading Corporation/appellant. 6. Aggrieved by the same, the appellant preferred further appeal under Section 129 (E) of the Customs Act under the CESTAT along with waiver application in C/PD/269/2007 in C/405/2007. On 19.02.2008, the CESTAT, South Zonal Bench, Chennai passed an order directing the appellant to pre-deposit an amount of Rs. 50,000/- under Section 129 (E) of the Customs Act within four weeks and posted for reporting compliance on 10.04.2008. Thereafter, on 21.04.2008, the time for pre-deposit was extended by another two weeks and again posted the matter for reporting compliance on 12.05.2008. Finally, the order was complied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the judicial discretion in favour of the appellant to redeem the goods by the adjudicating authorities is bad in law. On the said ground, the authority rejected the same, which was dealt with in paragraph No.2 of the final order passed on 28.01.2015 wherein, the authority demonstrates non-existent/fictitious concerns were created and fraudulent documents were designed for attempting to export the prohibited goods. From the origin to the destination, the modus operandi shows conscious efforts adopted by the appellant to export the prohibited goods. 11. That apart, none of the documents were produced before the original authority. Being the appellant, it is for him to disprove the departmental allegation. Hence, there is no question of exercising the judicious discretion in favour of the appellant invoking Section 125 of the Customs Act. 12. Apart from the above, learned counsel appearing for the appellant has raised a substantial question of law that whether the Tribunal is right in rejecting the miscellaneous application for restoration of the appeal and at the same time rendered findings on merits under the impugned order and therefore, whether there has been a miscarriage o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the other either before adjudicating authority or before this court. 14. However, on perusal of the entire records, it is seen that the appellant, in one way or the other, has protracted the proceedings, right from the year 1992, till date and on perusal of the application made before the authority for recalling the order, it would show that no sufficient cause was established for preventing the person from appearing before the authority. The reason stated in the application is extracted as follows: "3. The Applicant says and submits that its non-appearance and that of its counsel is neither willful nor wanton, but only due to the facts that the Counsel for Applicant was unavoidably held up before the Hon'ble High Court in a part heard matter and had requested through a proxy counsel for short adjournment." 15. Without establishing sufficient cause for non-appearance before the authority, that too, when the appellant has filed a petition to recall the order when he all along, agitated the case before the authorities, his non-appearance before the Appellate Authority in his appeal, this Court, is not convinced with the reason given in the application for recalling the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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