TaxTMI 
TaxTMI 
2014 (6) TMI 266
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.....2010 and No.6416009, dt.30.04.2010 filed by M/s Oswal Handicrafts, Jodhpur and the items declared was 17 tons of furniture. The containers were found sealed with one time bottle seals of Jodhpur Central Excise II Range. During the detailed examination of these two containers, it was seen that they contain Red sander logs having quantities of 17.880 MT and 21.180 MT in the container No.TGHU 8926084 and TRLU 6669027 respectively. The containers were having one time lock seal bearing No.083577 and No.APL 9174617. Both the seals on the containers were found to be intact and there was no visible sign on hinges and rivets of the doors of containers to indicate any tampering. On opening of these containers, it was found that the same were stuffed with red sander logs as against the furniture items declared in the clearance documents. The total weight of the red sander logs from the two containers was 39.06 MTs. During investigation, statement of Shri Mukhalesh Jain, Inspector of Central Excise who supervised stuffing and sealing of containers was recorded on 23.07.2010 under which it was submitted that he along with Superintendent looked after the work of loading and sealing of furniture....
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.... co-accused Shri Mukhalesh Jain cannot be used against the present appellant in the absence of any other corroborative evidence. Ld.Advocate also made the Bench go through the order dt.19.10.2013 passed by the jurisdictional CBI Court where Special Criminal No.12/2011 is filed and submitted that as per this order also Shri Khem Singh Lalas has not been considered to be liable for further prosecution as no charges are framed against him whereas the charges have been framed against other persons including Shri Mukhalesh Jain. It is also submitted that Shri Khem Singh Lalas is a kidney patient and is due to retire shortly. 4. Shri D.K. Trivedi, ld.Advocate appearing on behalf of Shri Mukalesh Jain argued that during the stuffing and sealing of the containers, only loading of furniture was noticed by him. That in the statement recorded by the investing agency, it was never confronted to him that only red sander logs were found in the containers without a trace of furniture which was supervised by him. Ld.Advocate made the Bench go through Para 16 of the OIO dt.22.05.2012 which contained the defense submission made by the appellant Shri Mukhalesh Jain. These submissions made before the....
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....e said container was transshipped from CWC-CFC to MICT, Mundra on 13.07.2006 by loading it on Truck No.GJ 12 8893. When the container was taken to Adani Port, Mundra, its seal was duly verified, and MICT, Mundra had duly acknowledged its receipt, that the seal applied at the material time was neither changed nor broken and the seal was never tampered. (v) On 14.07.2006, Customs Officers at Kandla, Mundra and DRI, Gandhidham opened the said container after breaking the two seals, one is EXP 681367 (which was sealed by the Customs P.O. after completion of stuffing as above) and another seal No.CARAVEL 39044 in the presence of two independent panchas and other officers at MICT, Mundra, whereupon, it was found that the said container contained red sander logs instead of roofing tiles for which shipping bill was filed. Statement of the owner of the truck No.GJ 8893 and driver of the said truck were recorded under Section 108 of Customs Act, 1962, wherein it was stated that the goods declared in the shipping bill were stuffed in the said container, which were, however, replaced with logs of red sanders in the farm known as Jamnagar Vadi. Search was carried out at the said Jamnagar Vadi ....
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....rima facie appeared that the same were meant for embossing numbers on bottle seals. (ix) Besides there are number of cases reported where the Bottle seals were found defective and after sealing when rotated and pulled down the lower portion of bottle seals opened. He enclosed a copy of letter of DC (H), Customs sub-commissionerate, Jodhpur who informed the Additional Commissioner, Customs, Jaipur. He also submitted a CD which would demonstrate how a Bottle Seal can be opened with the help of some instruments without tampering the bottle seal and again locked in the same manner. (x) Statement of Shri Deepak Jain, Proprietor of M/s Oswal Handicrafts, Jodhpur has also not been provided to him as he is not available to DRI. Now, it has come to notice that Shri Deepak Jain has surrendered before CBI Court, Jodhpur, so a copy of his statement may be provided to him. (xi) He placed reliance on various case laws, viz. (i) CC Bangalore Vs M. Naushad - 2007 (210) ELT 464 (Tri-Bang) (ii) CC New Delhi Vs Hargovind Export 2003 (158) ELT 496 (Tri-Del) (iii) CC (Prev.) West Bengal Vs Arun Chakraborty - 2009 (48) ELT 530 (Tri-Kolkata) (iv) CC New Delhi Vs M.I. Khan - 2000 (120) ELT 542 (T....
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....Export 2003 (158) ELT 496 (Tri-Del) iii) CC Bangalore Vs M. Naushad 2007 (210) ELT 464 (Tri-Bang) iv) I. Sahaya Edin Prabhu Vs CC Chennai 2008 (222) ELT 308 (Tri-Che.) v) C. Ashok Kumar Vs CC (Export-Seaport), Chennai 2010 (262) ELT 321 (Tri-Che.) vi) Neptune's Cargo Movers Pvt.Ltd. Vs CC (Export) Chennai 2007 (219) ELT 673 (Tri-Che.) 5. Heard both sides and perused the case records. So far as the imposition of penalties upon Shri Khem Singh Lalas is concerned, it is observed from the records that as per the prescribed procedure and CBEC Circular dt.24.12.2013, during examination and sealing of export consignment under consideration the Superintendent can depute an officer or he himself can carry out the process of examination and sealing as per relevant departmental instructions. In the present case, during investigation and before the adjudicating authority, this appellant has taken a stand that in the present stuffing and sealings of containers, he was physi....
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....e one time seals by embossing the desired number. It is also observed from Para 16 (vii) of the order dt.22.05.2012 that a senior officer of DRI has written to Additional Chief Secretary of Govt. of Rajasthan that the smugglers in India place order for export of various goods like furniture or refractory bricks etc. to the indigenous manufacturers and pursue them to get the container factory stuffed in presence of Central Excise /Customs officers. The containers are loaded into the vehicle provided by the smugglers and during the transportation from factory of stuffing to the ports, these unscrupulous elements indulge in cutting open the seal, de-stuffing of container and stuffing with red sander logs and re-sealing back with duplicate seals of customs and that thereafter the containers are exported out of India. Factual submissions made in Para 16 (viii) of the OIO dt.22.05.2012 also convey that unscrupulous elements do manipulate the existing prescribed procedures. No findings have been recorded by the adjudicating authority on the factual submissions made by the appellant. On the contrary, he had observed in the adjudication order that element of conspiracy of abetment against t....