SHAKTHI Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This appeal by the Revenue is directed against the order passed by the Customs, Excise & Service Tax Appellate Tribunal (Tribunal) in Appeal No. C132-133/2009, dated 28-7-2011. The Tribunal by the said order, dismissed the appeal filed by the appellant and thereby confirming the order of penalty imposed on the appellant. The appellant seeks admission of the above appeal, by raising the following substantial questions of law:-

(2.) The Directorate of Revenue Intelligence issued a show cause notice, dated 12-3-2008 to the appellant, who was at that point of time a cofeposa detenue and lodged in the Central prison, Madurai. The other noticees were M/s. Navamani Match Works, Mr. Ramasubbu @ Ramesh, Mr. Alibhai, Mr. B.A. Thomas and M/s. Sree Valli Shipping & Transport, Tuticorin. One of the other noticee Mr. Ramasubbu @ Ramesh was also a cofeposa detenue at the said point of time, when the show cause notice was issued. In the said show cause notice, it was proposed to levy of penalty under Section 114 of the Customs Act and punishment under Section 135(1)(a) of the Act read with Sections 2(33), 2(39), 11 of the Customs Act and Section 11(1) of the Foreign Trade (Development & Regulation) Act, since the appellant indulged in illicit export of Red Sanders Wooden logs, which was a prohibited item for export under the Customs Act read with Foreign Trade Policy 2004-09.

(3.) In the show cause notice, the role played by the appellant was stated and reference was also made to the statements recorded from the appellant under Section 108 of the Customs Act. The appellant submitted his reply on 21-4-2008 denying the allegations made against him and stating that he is innocent and prayed for dropping the proposal to levy penalty and take action under the provisions of the Customs Act. The Adjudicating Authority considered the case on merits and observed that the appellant, Mr. K. Ramasubbu @ Ramesh and Martin Luther have spoken about the material role played by Mr. Alibhai of Chennai and Mr. Anbu of Madurai, but did not provide any vital clues about the whereabouts and therefore, he could not be located. On verification, as regards the ownership details pertaining to a car, it was found that the car was given by the appellant and used by Anbu of Madurai and the registration of the car was done before the Regional Transport Officer, Madurai. On enquiry, it was found that the registration number pertained to a motorcycle and not a TATA Indica Car as accepted by the appellant in his statement dated 27-9-2007. The Adjudicating Authority has elaborately dealt with the role played by the appellant, and the basis for issuance of the show cause notice, the Adjudicating Authority considered the reply submitted by the appellant as well as the other co-noticees and after affording an opportunity of personal hearing to the appellant on 30-9-2008, considered the case and recorded a finding that the declared export goods were stuffed inside the container CCSU 41740-5 picked up by the vehicle arranged by the appellant and Alibhai at M/s. Vijay Impex, Kovilpatti purportedly under the supervision of Central Excise officer and the container was sealed. The trailer laden with the sealed container was not taken to the port immediately, but taken to a godown at Palavantham, which was hired by the appellant, who posed himself as Sathish Kumar of Madurai. Part of the quantity of safety matches was replaced there by the gang with 18.66 MT of Red Sanders Wooden logs, which were secreted there, without tampering the seals but by tampering the container. Thereafter, the consignment reached Tuticorin Port, which was intercepted by the DRI officer before its loading into the scheduled vessel and on examination of the container revealed that it contained 18.66 MT of Red Sanders logs and 800 Cartons of Safety Matches.