2021 (11) TMI 963 - HC - Customs

Smuggling - Red Sanders - Contraband item - omission and dereliction committed on the part of the said Respondent during the time of the export of the said consignment - seal of the Respondent has been tampered with during the inspection of the goods - scope of place of removal as per provisions of Section 4(1)(c) of the Central Excise Act, 1944 - CBEC Circular No.999/6/2015-CX dated February 28, 2015 - HELD THAT - The entire matter is fully factual and no question of law much less substantial question of law arises for consideration. We support such conclusion with the following reasons. As pointed out in the show cause notice dated 15th March, 2013 issued by the DRI, copy of which has been placed before us by the learned Counsel for the respondent/exporter, it is found that there is no specific allegation against the respondent/company connecting them with the attempt to export Red Sanders Wooden Logs which are prohibited item. The appellant department proceeded against the respondent by assuming that the respondent should be held responsible for the contraband being stuffed inside the container. This aspect of the matter was considered by the Tribunal and it referred to various documents more particularly the Panchanama dated 19.09.2012 in which it has been specifically stated that the seal number as mentioned on the export documents was found securely fixed on the said container, intact and untampered. Thereafter, the container was opened in the presence of all concerned as mentioned in the Panchanama. Thus, at the earliest point of time, there was nothing to connect the respondent company with the presence of the contraband inside the container which was admittedly sealed in the factory premises by the jurisdiction Central Excise Officer. Further, statement under Section 108 of the Act was recorded and the Superintendent of the Central Excise who had examined the goods had in no uncertain terms stated and confirmed his signature appearing in the ARE-1 and that it was genuine. The adjudicating authority in the order in original dated 23rd February, 2015 fixed the responsibility on the respondent/exporter based on presumption and assumption and admittedly the appellant department were unable to produce any record to connect the respondent with the presence of the contraband which was found inside the container with the seal intact at the time when the container was taken for examination. Furthermore, the Tribunal took note of Section 13 of the Multimodal Transportation of Goods Act, 1993 whereunder the multimodal transport operator has been fixed with the responsibility of the cargo for any loss/damage or delay in delivery of consignment etc. If the multimodal transporter has to wriggle out of the obligation cast under the Act, then in terms of the first two proviso to Section 13(1) the multimodal transporter operator has to prove that no fault or neglect on his part or that of his servants or agents and he has not contributed to such loss, damage or delay. The final fact-finding authority, namely, the Tribunal has re-examined the factual position and returned a finding based on documents that there is no evidence produced by the appellant department to fix the respondent/exporter with an attempt to export Red Sanders Wooden Logs - no question of law much less substantial question of law arisen for consideration in this appeal. Appeal dismissed.

Summary

Issues:
1. Alleged violation of provisions of Customs Act, 1962 by the Tribunal.
2. Alleged perversity in Tribunal's conclusion regarding tampering of seal.
3. Ignoring provisions of Central Excise Act and CBEC Circular by the Tribunal.

Analysis:
1. The Revenue filed an appeal under Section 130 of the Customs Act, 1962 against the Tribunal's order. The appeal raised questions on whether the Tribunal acted against the provisions of Section 114 of the Act and whether a clear case was made out against the Respondent for the seizure of red sanders during export. The High Court found that the Tribunal correctly assessed the factual aspects and no substantial question of law arose. The Tribunal noted lack of evidence connecting the Respondent with the contraband, which was sealed in the factory premises by the Central Excise Officer.

2. The Revenue contended that the Tribunal erred in concluding that the seal of the Respondent was tampered with during inspection. However, the High Court observed that the seal was intact until interception, as per the Panchanama drawn at that time. The Tribunal's decision was based on factual findings and documents, including the Panchanama, which did not implicate the Respondent in the contraband's presence inside the container.

3. The Revenue also argued that the Tribunal ignored provisions of the Central Excise Act and a CBEC Circular. However, the High Court found that the Tribunal correctly applied the law, especially regarding the responsibility of the multimodal transport operator under the Multimodal Transportation of Goods Act, 1993. The Tribunal's decision was in line with the legal framework and factual evidence presented during the proceedings.

In conclusion, the High Court dismissed the appeal, stating that no substantial question of law arose for consideration. The Tribunal's decision was upheld based on the factual assessment and legal provisions applied correctly. The Court emphasized the lack of evidence connecting the Respondent with the contraband and affirmed the Tribunal's findings regarding the responsibility of the multimodal transport operator. The stay application related to the appeal was also dismissed.