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TMI Blog2018 (5) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals are filed against the Order-in-Original No. 6/2004-15 dated 09.05.2015. 2. The Directorate of Revenue Intelligence received the intelligence which indicated that a Chennai based syndicate comprising of Sh. A. T. Maideen, Sh. N. C. Chellathambi and Sh. C. Sekhar and Associates was engaged in smuggling of Red Sanders wood, which was an item prohibited for export as per Import Export Policy. The DRI Officers conducted searches at the residences of Sh. N. C. Chellathambi, Sh. C. Sekhar and their godown situated at Shahabad Daulatpur, Delhi on 24.11.2018. From the residential premises certain incriminating documents, indicating details of illegal procurement and sale of red sanders wood for export as well as cash amounting to Rs. 8.5 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the factory of M/s Bhatinda Ceramic by M/s Panesar Transport Company, (Prop. Amardeep Singh Panesar) when the same was diverted at Sudhar and goods replaced. 5. As per the modus operandi uncovered by DRI, it is revealed that Sh. A. T. Maideen was the overall incharge and controller of the total procurement and illegal export of red sanders wood. The red sanders wood was sourced from Andhra Pradesh by Sh. A. Chalathambi and Sh. Sekhar and stored in the godown belonging to the latter before being transported and loaded at Sudhar. 6. After issue of show cause notice and adjudication proceedings the impugned order was passed in which inter-alia the adjudicating authority ordered as follows:- (i) The red sanders wood seized from the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined at ICD and let export order was given. But when the containers were opened and examined at Mundra Port, alongwith the pin insulator, the contraband goods in the form of red sanders wood was also found concealed. It is the submission made on behalf of the appellants that the goods were loaded into containers in the factory of the appellant after following the proper procedure. They have also taken reasonable precautions on the way to ICD, Ludhiana. Subsequently, both the appellants have claimed that they have no active or positive, direct or indirect role in replacing the declared goods partially with red sanders wood. It is submitted that no penalty is imposable on them. (ii) After perusal of the appeal record, we note that the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainer if the customs officer had insisted so. (ii) The export goods are subjected to examination by the Customs Officers as per the norms adopted by them. There is no doubt that the Customs Officers had prerogative and discretion to order 100% examination of the export cargo but practically it is not ordered in each and every case. In respect of the two impugned containers, the customs officers have chosen to examine the consignment cursorily without 100% destuffing. The appellant cannot be penalised for the fact that contraband cargo was concealed within the declared consignment of pin insulators and the same was detected only subsequently at the time of 100% re- examination of the cargo at Mundra Port. (iii) In view of the above, we fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of the vehicle cannot escape the vicarious liability. In the result, we uphold the penalty imposed on him. 9D. Sh. A.T. Maideen (Appeal No. C/50578/2015) Sh. N.C. Chellathambi (Appeal No. C/54969/2014) Sh. C. Sekar (Appeal No. 54978/2014) (i) The penalty imposed on Sh. A.T. Maideen has been challenged in the appeal before us. It is submitted that the appellant is not the exporter and hence no penalty can be imposed under Section 114 and 114(AA) of the Customs Act, 1962. It is argued that the statement given by Sh. Maideen was subsequently retracted and hence no credence can be given to such statement. It is further submitted that he has been implicated by the co-accused namely Sh. C. Sekhar and Sh. N. C. Chalathambi who have given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court of Kerala in the case of K. P. Abdul Majeed vs. CC, Cochin-2014-TIOL-2646-HC-Kerala-Cus. Similar views have been expressed by this Tribunal in the case of Shri Shakthi & Ors. vs. CC, Tuticorin-2011-TIOL-1576-CESTAT-MAD. In his statements Sh. Maideen has given the detailed account of the modus operandi orchestrated by him in league with Sh. Sekhar, Chalathambi and others. According to the modus-operandi admitted, red sanders was purchased by Sh. A. T. Maideen from Andhra Pradesh and supplied to Sh. N. C. Chalathambi and Sh. Sekhar and stored at their godown at Delhi. From such godown the contraband is illegally exported through various ports. It is admitted by Sh. N.C. Chalathambi and Sh. Sekhar also that red sanders stored in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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