TMI Blog2020 (9) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the error of not mentioning the proposal to impose penalty again in para 35, does not render imposition of penalty bad, as the show cause notice is required to be read as a whole. Single para cannot be read in isolation for drawing a conclusion. Thus the allegation made in para 34.3 to impose penalty is sufficient. Evidently this appellant was an active member of the smuggling syndicate of red sanders. He further states that in the course of search of residential premises of this appellant, some documents in connection with export were found. This appellant also accepted in the course of statement recorded under Section 108 of his involvement in the smuggling. However, subsequently retracted his statement. Under such circumstances retracted statement is good evidence in view of the corroborative statement of the other persons. Further call detail records indicate that this appellant was in direct contact with the other members of the syndicate. Thus, there is no evidence to show that the goods were allegedly kept with intention to export or were attempted to be exported, no case of confiscation is made out - It was also observed by the Division Bench that so far the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Shri Anil Gadodia on 28.9.2013 wood weighing 75.808 Kg. of brown colour and 23.03 Kgs of red colour valued at ₹ 98,838/- was found and detained. Indian currency of ₹ 14.50 lakhs was detained from the premises. Additional cash amount of ₹ 10 lakhs received on the same day from the person named Shri Shiv Kumar, during the course of search was also seized. 3. Further during the course of investigations statement of various persons were recorded by DRI, the details of same are as under: (i) Shri Rameshwar Sharma, Proprietor, Euro Exports-statements dated 28.9.2013 and 29.9.2013 recorded at Jaipur. (ii) Shri Anil Gadodia, Proprietor of M/s Jiwan International, a dealer in sandalwood chips, powder and red sanders-statements dated 28.9.2013, 29.9.2013 and 15.7.2014. (iii) Shri Mayur Ranjan @ Vijay, a Chinese interpreter and a tour guide working freelance, statements dated 28.9.2013 and 29.9.2013. (iv) Shri Daljeet Singh working with a Cargo Moving Company-statements dated 28.9.2013, 29.9.2013 and 18.7.2014. (v) Mr. Yodying @ Chan, a permanent Bangkok resident, statements dated 28.9.2013 and 29.9.2013. (vi) Shri Shiv Kumar engaged in the business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Chopra for rates for arranging fraudulent export of red sanders and Shri Anil Gadodia for supply of illegal red sanders for fraudulent exports; (iii) On being informed by Shri Saurabh Chopra @ Saurav around Nov-Dec. 2012 (inadvertently typed as Nov. Dec. 2013 in the statement), he has arranged the godown in Todapur, Inderpuri, New Delhi and on being asked to supply red sanders wood for export, Shri Mayur Ranjan contacted Mr. Anil Gadodia for supplying the consignment of 6 MT at Shri Saurabh Chopra s godown. The said quantity of 6 MTs of red sanders was subsequently exported to Hong Kong using some export firm; (iv) He arranged one more consignment of 12 MT of red sanders from Shri Anil Gadodia which was also exported by Mr. Saurav Chopra using some export firm; (v) He arranged one more consignment of 8.02 MT of red sanders from Shri Anil Gadodia which was to be exported through some export firm; (vi) He arranged one more consignment of 18 MT of red sanders from Shri Anil Gadodia at the godown located at Bavana, taken on rent by Mr. Saurav Chopra for export. The said quantity of red sanders was fraudulently exported using IEC of M/s Tulika Appliances to M/s RICHUP Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons including this appellant, Shri Anil Gadodia had filed Appeal No. 52231 of 2019 against order of confiscation and penalty. This Tribunal vide Final Order No. 50471/2020 dated 28 February, 2020 allowing the appeal held as under: 9. In the present case except statements there is no evidence to show that the goods allegedly kept with intention to attempt the export thereof. No peace of document which show that the red senders stored were meant for export it is undisputed fact that the appellant is a licensed trader of red senders who purchase the red senders in Government auction and trade within the country, therefore, by any stretch of imagination it cannot be construed that the goods laying with the appellant were attempted to the export. 10. In our view, in order to establish that there is attempt to export it is necessary that either the goods have entered into port area or if it is outside port area there should be some documents such as invoice/shipping bill/LR for transportation of goods to the port etc. In the present case goods were lying much away from the port area i.e. the goods were lying at Delhi whereas it was alleged that the goods supposed to be exported f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isproportionate assets indicating receipt of remuneration or commission in support of the allegation of Revenue. Thus, the allegation of Revenue of abetment is based on assumption and presumption. Thus, the penalty imposed on this appellant is fit to be set aside. Learned Counsel relies on the following rulings: (i) Naresh Kumar Mittal Vs. CC 2003 (161) ELT 851 (Tri.-Kolkata); (ii) CCE Vs. Birla Textiles Mills 2010 (257) ELT 146 (Tri.-Del.); (iii) CCE Vs. Birla Textile Mills 2015 (325) ELT 651 (Del.) 8. Learned Authorised Representative for Revenue had raised a preliminary objection as regards jurisdiction of Single member Bench to hear this appeal as the value of goods confiscated vide common order in original is more than ₹ 50 lakhs whereas as per the power conferred on the Single member under Section 129C (4) to dispose of any case where the value of goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation or where the fine or penalty involved does not exceed ₹ 50 lakhs. He further relies on the ruling of Hon ble Allhabad High Court in the case of CCE ST, Lucknow Vs. AIMR Jewels Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finally show cause as to why goods, currency etc. not be confiscated under Section 113 read with Section 121 of the Custom Act for violation of Section 11 of the Customs Act read with Appendix-II of CITES. Thus for the error of not mentioning the proposal to impose penalty again in para 35, does not render imposition of penalty bad, as the show cause notice is required to be read as a whole. Single para cannot be read in isolation for drawing a conclusion. Thus the allegation made in para 34.3 to impose penalty is sufficient. He further rely on the ruling of Hon ble Supreme Court in the case of J.K. Steel Ltd. Vs. Union of India - 1978 (2) ELT J 355 (SC) and also Delhi High Court in Commissioner of Service Tax Vs. ITC Ltd. 2014 (36) STR 481 (Del.) which have been approved by Hon ble Supreme Court reported as 2015 (38) STR J 362 (SC). We further state from the facts and findings on record, evidently this appellant was an active member of the smuggling syndicate of red sanders. He further states that in the course of search of residential premises of this appellant, some documents in connection with export were found. This appellant also accepted in the course of statement recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
