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TMI Blog2024 (1) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, 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 ICD Khodiyar, Ahmedabad. However the container was found open by removing the rivets of the handles of the container and most of the green marble slab had been offloaded in the warehouse in order to replace them with Red Sander logs. On examination of the trucks it was found that these two trucks were loaded with red sander logs concealed in between Nilgiri wooden logs and between shootings/sands filled with worn out plastics bags. Red Sander logs are prohibited for export. Mr. Rajesh Subramaniam who was present at the warehouse premises informed that one Mr. Anwar had brought the trailor from Udaipur to the warehouse. He further informed that the goods meant for export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal 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 Section 114(i) of the Act. I further found that Mr. Lakhavat knew that the 7 containers exported in the past were loaded with red sanders in the guise of marble slabs and 1 container seized on 3/4. 07.2014 was to be loaded with red sanders in the place of marble slabs and therefore, he had used incorrect and false documents in order the smuggle the red sander logs out of India. Therefore, he is liable for penalty under the provisions of Sections 114AA of the Act." 1.6 Being aggrieved with the impugned order appellant filed the present appeal. 2. Shri Devashish K. Trivedi , Learned Counsel appearing on behalf of appellant submits that the impugned order is illegal, improper and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 which the appellant herein used to undertake while dealing with the exporters was that, on request of the said exporters, the appellant used to arrange for empty containers from the Shipping Line. However, transportation of the empty containers was from the shipping line to the factory of the shipper was arranged by the shippers themselves. Thereafter, the containers were stuffed and sealed in presence of the officers of Central Excise Department. Thereafter, the transportation of the stuffed container in trucks to the port of export i.e. ICD Khodiyar was arranged by the shippers themselves. The appellant herein was not at all concerned with container stuffing or transportation of container. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 a container, when the same is stuffed for the purpose of export in factory premises. Appellant never gave any instruction regarding the quality of marble to be exported. As regard Shri Rajesh Subramaniam and Shri Anwar Khan and the officers of the DRI are concerned, although cross examination of both of them was particularly requested, the same was not afforded to the appellant herein. As such, the settled preposition of law is that having regard to overall facts and circumstances of the case, it must be decided whether the statements of those people whose cross-examination is not conducted, could be given weightage or otherwise. The appellant herein understand that both the aforesaid witness are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainer 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. Ltd. (ii) M/s Nidhi Marbles and (iii) M/s Madhusudan Marbles Pvt. Ltd. All the three shipper had told the appellant that they would send their respective transporters to collect empty container from the CHA M/s Priti Clearing Agency, Ahmedabad. Accordingly they had sent their respective transporter to collect the empty container from ICD from CHA. We find that in the impugned transactions, appellant had no role to play, he was not physically present either at ICD for the purpose of lifting empty containers and taking the shipper's premise for container stuffing. The Appellant had physically not visited any of the said places. During the course of surveillance by DRI, in the warehouse premises situated village ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stuffing and attempted export of red sanders in the container. Abetment means a positive act on the part of the appellant and as can be seen from the facts and circumstances, there is no evidence forthcoming to show that the appellant had given any assistance in the attempted export of red sanders. Under these circumstances exist, penalties imposed on the appellant are not sustainable and the same is set aside. 4.6 As regard the absolute confiscation of the cash of Rs 7,50,000/- seized from the residence of appellant, we find that Ld. Commissioner in impugned order held that " it is clear from the deposition of Mr. Hanumansingh Lakhavat dated 05.07.2014 that he had received an amount of Rs. 8 lacks from Mr. Abdul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 121 of the Customs Act. Further Tribunal in the case of Collector of Central Excise v. Sudhir Electronics [2000 (123) E.L.T. 1054 (Tribunal)] has held that inasmuch as the Indian currency is not one of the specified items under Section 123 of the Customs Act, Department has to establish the sale of the smuggled goods and the identity of the seller and the producer and confiscation of the same cannot be made solely on the retracted statement. Law is settled on the above issue. Therefore, the impugned order qua absolute confiscation of cash seized is contrary to law which shows that the Adjudicating Authority has not applied its mind for absolute confiscation of currency seized during the course of investigation. Therefore, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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