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TMI Blog2013 (2) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 7 of FTDR Act and Rules 12 and 14 of Foreign Trade (Regulations) Rules, 1993 is also established. The goods were brought within the customs area for the purpose of being exported. Thus the provisions of Section 113(d) are also attracted. Therefore, the confiscation of the goods is justified. Consequently penalty under Sections 114 and 114AA are also attracted. Regarding the goods seized at the transporter’s premises and the office premises of the appellant, confiscation has been proposed under Section 113(d). For confiscation under the said section, either there should be an attempt to export the goods or the goods should have been brought within the customs area for the purposes of export. Both these conditions are not satisfied in respect of these goods. Therefore, we set aside the confiscation, imposition of fine and penalty in respect of these goods as unsustainable in law. Adjudicating authority has dealt with this matter quite extensively. The allegation against the appellant has been very clearly established by the export documents seized, test reports on the nature of the goods, the statements of Satish Parab, the person who organized for the clearance of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid premises. Inquiries revealed that Sri Pradeep Dhond had taken the said premises on rental basis and the goods belonged to him. Ankush Mohite was an employee of Mr. Dhond. Sateesh Parab was the CHA whose services were used for exporting the goods and Sri Ajay P. Singh was the owner of the tempo intercepted at the Air Cargo Complex. 2.2 Enquiries made revealed that some of the goods belonging to Mr. Pradeep Dhond were also lying in the transporter s premises at Jayant Apartment, Andheri East, Mumbai and the same premises were searched which resulted in recovery of 9 bags of white powder weighing 317.600 kgs. which tested positive for Amphetamine. 2.3 Statement of Mr. Dhond was recorded under Section 67 of the NDPS Act on 13-6-2008. Mr. Dhond inter alia stated that the goods intercepted at the Air Cargo complex were packed and dispatched from his office premises and his friend Mr. S.P. Bahl had procured an order for supply of 2000 kgs. of lead acetate from a party in Mexico and had asked him to arrange for part of the consignment. Accordingly he had arranged for lead acetate which was packed in 52 drums and the balance material packed in 28 drums were arranged by S.P Bahl. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishra to fetch the goods and packing/repacking the goods received from S.P. Bahl and Pradeep Dhond and preparing the export documents by signing the documents on behalf of Pradeep Dhond and bringing the goods to Air Cargo Complex, Sahar for export. Mr. Ankush Mohite, employee of Pradeep Dhond, Mr. Anil Mishra, the driver of the tempo, Mr. Ajay P. Singh, owner of the tempo in their statements recorded under the provisions of the Customs Act corroborated the facts stated by Satish Parab. Mr. Deepak Ghodeshwar, employee of M/s. Ultramarine P. Ltd., the CHA, Mr. Satyanarayan Ramnihor, Asst. Manager of the CHA firm confirmed the filing of shipping bill No. 6835102, dated 11-6-2008 electronically in respect of the consignment seized at the ACC, Sahar and issue of Airway Bill by KLM Airlines for the cargo meant for export. This was re-confirmed by Mr. James D Souza, Manager of KLM Royal Dutch Airlines in his statement recorded under the Customs Act. Statement of Sri Sanjay Malik of KLM Exports Ltd. was recorded in which he confirmed that though he knew Mr. Pradeep Dhond, he had never exported any consignment along with Mr. Dhond and his IEC code has been fraudulently used by Mr. Dhond in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act. 2.8 The case was adjudicated vide the impugned order and the goods were confiscated under Section 113(d) and 113(i) in respect of the goods mentioned at clause (a) of para 2.7 above and under Section 113(d) in respect of goods mentioned at clause (c) of the preceding para. However, option to redeem the goods were given on payment of fine of ₹ 28,08,900/- and ₹ 24,58,900/- respectively. A penalty of ₹ 11,23,560/- was imposed under Section 114(i) and ₹ 5,61,780/- under Section 114AA in respect of the goods seized at the ACC, Sahar and a penalty of ₹ 9,83,560/- was imposed under Section 114(i) in respect of the goods seized at the Transporter s godown and office premises of Mr. Pradeep Dhond, on Mr. Pradeep Dhond apart from equivalent amounts of penalties on Mr. S.P. Bahl. 3. The ld. Counsel for the appellant did not dispute the allegations in the show cause notice nor the findings given by the adjudicating authority. However, he pleaded for leniency in the matter of imposition of fine and penalty and sought for reduction in the same. However, in the appeal memorandum, it is alleged that principles of natural justice was violated inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he value under Section 114 and 5% of the value under Section 114AA. Considering the gravity of the offence, we do not find the quantum of fine and penalty imposed as unreasonable or harsh. Accordingly we upheld the same. 5.4 Regarding the goods seized at the transporter s premises and the office premises of the appellant, confiscation has been proposed under Section 113(d). For confiscation under the said section, either there should be an attempt to export the goods or the goods should have been brought within the customs area for the purposes of export. Both these conditions are not satisfied in respect of these goods. Therefore, we set aside the confiscation, imposition of fine and penalty in respect of these goods as unsustainable in law. 5.5 As regards the denial of cross examination of witnesses, we find that the ld. Adjudicating authority has dealt with this matter quite extensively. The allegation against the appellant has been very clearly established by the export documents seized, test reports on the nature of the goods, the statements of Satish Parab, the person who organized for the clearance of goods for export, Ankush Mohite, employee of the appellant, Ajay P. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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