P BHASKAR NAIDU Vs. COMMISSIONER OF CUSTOMS (EXPORTS)

JUDGEMENT

(1.) Challenge in this civil miscellaneous appeal is made to the Final Order No. 141/2012, dated 16.02.2012, passed by the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Chennai, rejecting the appeal preferred by the appellant, challenging the Order in Original No.6636/07, dated 31.08.07, passed by the Commissioner of Customs (Export-seaport), Chennai and imposing the penalty on the appellant to Rupees six lakhs for the acts committed by him, (for his role in the attempted export of Red Sander Wood Logs), as provided under Section 114 of the Customs Act, 1962.

(2.) Shorn of unnecessary details, the case involved in the subject matter is that the appellant, as the Chief Executive Officer of M/s.Archana Exports, filed a Shipping Bill for export of 20 MT of Granite Cobble Stones to Malaysia and accordingly, the abovesaid goods were stuffed into container at the exporter's factory at Kuppam on 03.08.2005 under the supervision of the Central Excise Inspector, Range I, Chittor, who had affixed his seal to the loaded container and allowed the same to be taken to Chennai port. The shipping bill had also been filed on the same date in the office of the Commissioner of Customs (Exports) Chennai. The Central Excise Inspector issued a certificate of verifying the empty container, checking the packages for the correctness of the contents and thereafter, loading of the packages into the container and sealing it with his seal. It is found that the Docks Intelligence Unit gathered intelligence that red sander wood logs, a prohibited item under the Foreign Trade Policy (2004-2009) were smuggled out of India by way of mis-declaration through Chennai port to Malaysia, Singapore and Hong Kong and based on the above intelligence gathered, the officers concerned identified a container TEXU 2338038(20') covered by Shipping Bill No.2124658 dated 03.08.2005, filed by one M/s. Archana Exports, for which, the appellant is the Chief Executive Officer. On suspicion that the abovesaid container might contain contraband in the place of declared cargo of Granite Cobble Stones at M/s. CCTL, Chennai port on 06.08.2005 and on visual examination of the container, in the presence of witnesses, it was noticed that the rivets of the handles on the right side door of the container appeared to be tampered with and changed with new ones. However, the Central Excise Seal bearing No.CE HYD 64 and the Steamer Agents OTL bearing No.011547 (SOL) were verified and found to be intact and thereafter, the authorities concerned broke up the seal and found the container to contain wood logs instead of the declared Granite Cobble Stones and thereafter, after complying with the necessary formalities in the presence of the witnesses, the container in question was opened and on opening, wood logs of assorted sizes were found stacked inside the whole container and they were certified as 'Red Sander Wood logs' by the authorities concerned and they were noted to be totally in 377 in numbers and accordingly, noting that the wood logs totally weighing 13320kgs were attempted to be exported out of India in contravention of the provisions of Customs Act, 1962, the above said contraband namely, the red sander wood logs were seized under a mahazar and thereafter, the appellant as well as the others involved in the matter were examined and their statements were recorded under Section 108 of the Customs Act.

(3.) The appellant, on being examined on 08.08.2005, had inter alia informed during the course of his voluntary statement that pursuant to the order placed by a Malaysian party i.e., M/s. Naldex Sdn. Bhd, Malaysia, for the export of granite cobble stones through one Mr.Krishnan of Chennai, who had met him at Kuppam, on behalf of Mr.Selvam of M/s. Naldex Sdn Bhd, Malaysia, during the month of May 2005, and placed order for 20 tons of cubes for a sum of US $ 1600/- and arranged payment of US $900/- through bank remittance from Malaysia as advance and also paid a further sum of Rs.30,000/- towards the material and the other alied works, who had asked him to keep the material ready for export and further, according to the appellant, meanwhile, one P.Saravanan contacted through phone and said that he was the brother of the buyer of Malaysia and informed that only the trailers owned by him should be used for moving the consignment from Kuppam to Chennai harbour and finally, after contacting the container agent and the CHA for necessary release of the container box and the documentations respectively, informed further that a trailer bearing Registration No.TN28E9696 with an empty container bearing the number TEXU 2338038 (20') came to his factory at Kuppam and the granite cobble stones were stuffed into it under the supervision of the Central Excise Inspector and after the affixing of the seal, the trailer left and he handed over the certified copies of the requisite papers and the sealed cover containing the seal to the person who came along with the trailer for handing over to the Chennai customs and according to him, that the shipping bills concerned for the abovesaid export has been generated in his firm's name i.e., Archana Exports, and later informed by the customs authorities that on the interception of the container, it was found to contain red sander wood logs instead of the declared cargo as described in the shipping bill and further, according to him, the trailer did not reach the harbour within a reasonable time and when he questioned Saravanan, with reference to the same, he informed that the vehicle was stopped by RTO on the ground that it was loaded beyond the prescribed weight at some point of place and that Saravanan informed him requesting to instruct the CHA to get the customs formalities done faster and thus, according to the appellant, the red sander wood logs would have been stuffed after destuffing the cargo during the transport time from Kuppam to Chennai, on the instruction of Saravanan or Krishnan and that the address of Saravanan has been furnished to him and according to him, Krishnan had not given any contact address and further, according to the appellant, when he was examined on 14.09.2005 that he is in-charge of the company M/s. Archana Exports and that he was approached by one Krishnan representing one Mr.Selvam of Malaysian buyer and Selvam had also contacted him over phone and informed that his brother would contact him in Chennai as regards the proposed export and later, Saravanan contacted him and furnished his address and that he never met him in person and contacted only through phone and he is not aware of the transport agency and the details of the driver of the said truck fixed for the transport of the consignment from Kuppam to Chennai harbour.