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TMI Blog2025 (5) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... . GJ-01 BY / 5397 parked near the export godown at Air Cargo Complex within the Customs Area and 9 packages were found loaded in the truck which were ready to be unloaded and despatched for export. Upon inquiry with the office of Jet Airways at Air Cargo Complex, Ahmedabad, a print out for the booking details of the said cargo was recovered from the system which confirmed that the booked cargo was of 9 packages approximately weighing 254 kgs and contents were declared as 'Carpets' in the booking details. It was also revealed that this was the only International Cargo booked for export by flight no. 9W2004 on the day and the same was destined for Hongkong via Mumbai and was booked by the IATA agent M/s. Freight Experts International Pvt Ltd. The 9 packages loaded in the orange colored Eicher truck bearing no. GJ-01 BY/ 5397 were found to be wrapped with white colored packing material and duly strapped. No marks and number were available on the packages. All the 9 packages were unloaded in the export shed of Air Cargo Complex, Ahmedabad within the Customs Area for detailed examination and the examination was carried out in presence of two independent panch witnesses and a panchnama w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be imposed upon him under section 114 (i) of the Customs Act, 1962 for the acts and omission on his part as mentioned in the show cause notice. 3. The show cause notice dated 13th May, 2011 was adjudicated by the Commissioner of Customs, Ahmedabad vide order-in original dated 13th May, 2012. In the order-in-original, the Adjudicating Authority, Commissioner, came to the conclusion that Shri Sameer Ahmed Mansuri of Ahmedabad has consciously and knowingly conspired with Shri Manpreet Singh Lakhmir Singh Gambhir, Shri Ramesh Nandlal Motiani alias Sai and Shri Shiv Kumar Sisodiya in the attempt of smuggling out of India 1303575 pieces of peacock feathers of Indian origin which is a prohibited items under the provisions of Section 11 of the Customs Act, 1962 read with Section 3 (2) of the Foreign Trade (Development and Regulation) Act, 1992 and as per Sr. no.37 of chapter 5 of the ITC - HS of the import export policy 2010. He has actively and knowingly concerned himself in violating the prohibitions / provisions of Section 11 of the Customs Act, 1962 read with Section 3 (2) of the Foreign Trade (Development and Regulation) Act, 1992. By his acts of commission and omission Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 114 (i) of Customs Act, 1962. 5.1 The learned counsel for the appellant also submitted that neither the appellant booked the consignment nor any document such as shipping bill or invoice was filed by the appellant and he was not aware about the goods attempted to the exported by Shri Manpreet Singh and as soon as the appellant came to know about the prohibited goods, the appellant warned Shri Ghambir that such transaction is dangerous. 5.2 The learned counsel for the appellant has also submitted that the only mistake of the appellant is that he is a friend of Shri Manpreet Singh and he was aware about the attempt of export made by Shri Manpreet Singh. The appellant cannot be penalized only because he is acquainted with the person who has attempted to make illegal export. The learned counsel for the appellant also submitted that the goods were not procured by the appellant. The appellant did not process any documents and he warned the exporter not to indulge into such export which shows bonafide of the appellant. 5.3 The learned counsel for the appellant also submitted that adjudicating authority failed to appreciate the fact that even in the statement of Shri Manpreet Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view that impugned order dated 13.05.2012 has been passed without taking into consideration the facts of the case, the role of the appellant in the alleged attempt of Shri Gambhir to export the prohibited items i.e. Peacock Feathers from India. 8.1 I agree with the learned Counsel for the appellant that even according to the department neither the appellant booked the consignment nor prepared any document such as shipping bills or invoices and he was not aware that the goods attempted to be exported by Shri Manpreet Singh Gambhir were prohibited goods. As soon as the appellant came to know about the prohibited goods, he warned Shri Manpreet Singh Gambhir that such transaction is dangerous. Merely because the appellant was present in the premises alongwith Shri Manpreet Singh Gambhir does not make him liable for an attempt to export of prohibited goods. It is also pertinent to mention here that the export never occurred as the attempt was frustrated by DRI officers. 8.2 It is also pertinent to note that in the impugned order, penalty was imposed upon the appellant on the basis of statement recorded under Section 108 of the Customs Act, 1962. In the statement of Shri Manpreet Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the same would be used against him. 8.3 The Hon'ble Punjab & Haryana High Court in the case of Jindal Drugs (Infra) - 2016 (340) ELT 67 (P & H) wherein the Hon'ble High Court laid down a detailed procedure, inter alia, providing for cross-examination of the witness of the Revenue by the Adjudicating Authority and thereafter, if the Adjudicating Authority is satisfied that the statement of the witness is admissible in evidence than the Adjudicating Authority is obligated to offer such witnesses for cross-examination by the other side/assessee. Such view has also been affirmed by the Hon'ble Supreme Court in the case of Andaman Timber (Infra) - 2015 (324) E.L.T. 641 (S.C.). 8.4 The learned Commissioner has wrongly relied upon the statement of the co-accused and the appellant recorded under Section 108 of the Customs Act, 1962 and has wrongly come to the conclusion that appellant by act of omission and commission rendered the ceased goods liable for confiscation under relevant provisions of Customs Act and rendered himself liable to penalty under Section 114(i) of Customs Act, 1962. 8.5 The Hon'ble Punjab & Haryana High Court in the case of Sukhwant Singh - (1995) 3 SCC 367, obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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