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TMI Blog2019 (7) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... s one crore under section 114 of the Customs Act. During the pendency of the appeal, the appellant died and his son and legal heir Shri B. Anvesh filed fresh vakalat of the Advocate, thus praying to be substituted for pursuing the appeal. Accordingly, substitution is allowed. 2. The brief facts of the case are that the appellant is a dealer/trader in stones. One Mr. K. Prabhakaran approached the appellant for export of stones to Shanghai United Granite Industrial Trading Company , China. The appellant procured the requisite stone slabs from the market and accordingly exported through Mr. K. Prabhakaran vide the shipping bill No. 27/07 08 dated 6th June 2007. The said Mr. Prabhakaran again approached the appellant with purchase order dated 28th July 2007, in favour of the appellant's proprietary concern M/s Baba Rocks for export of black galaxy rough stone blocks, gross size CBM 2.626 and also of different size having gross volume 2.070 CBM. The appellant procured the requisite granite blocks/stone slabs from Golden granites for ₹ 94,710 by cheque and provided the stones to the said Mr. K. Prabhakaran and issued invoices No. EXP003/2007-08 dated 1st August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -declaration, 940 numbers of red sanders logs totally weighing 21 MT were found, valued at ₹ 84 lakhs market value, were seized under the customs act. The 2 containers used for smuggling were also seized and handed over to CCTL authorities (custodian) for safe custody. 5. M/s Madras Homeward Freight Conference Society vide their survey report dated 14 August 2007 reported that in both the containers 3rd and 4th lock rod rivets holding the handle were tempered and loosely fitted, after the stuffing the 3rd and 4th lock rod handle, rivets fallen from the original position and the handle came out, and that the rivets have been tempered. 6. The office premises of Baba Rocks, Ongole was searched by the officers of central excise on 10 August 2007 in the presence of MLN Sharma Accountant. Mr. Sharma informed that they had cleared two consignments vide shipping bill No. 27/07 dated 6 June 2007 and S. B. No. 47/07 dated 3 August 2007, through ICD, Chima kurthy One Mr. K. Prabhakaran represented the foreign buyer. Further appellant by their letter dated 10 August 2007, submitted inter-alia that they have nothing to do with the seizure of red sanders and they do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he did not know whether this payment had come from Singapore, China or Colombo. Mr. K. Prabhakaran said that this amount was towards part payment of the 1st consignment. The appellant explained that for the 1st consignment he received ₹120,000/-, that as explained earlier he had received 4880 US$ by TT. Thus, total he had received ₹. 3,15,724/- towards the two shipments. When asked for his comments that for the said two shipping bills he had received the entire payment, and he was not present at the ICD at the time of stuffing of cargo and further he appeared to be aware that granite blocks sent under the said two shipping bill could have been loaded in a single container instead of 2 containers, and it appeared that he had prior knowledge about substitution of red sanders for the declared cargo, the appellant replied that he had no such intuition or knowledge. He came to know about the substitution of stones with red sanders only after interception and examination by the officials. That he had allowed the use of his ICD for export, only with the intention that Mr. K. Prabhakaran would get good orders for granite export. 8. Statement of Mr. A.P. Raja of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainers that are sealed, to the Gateway Chennai, all is done in association with Mr. P. A. Thyagrajan, who sits at Chennai and Manoharan staff at ICD. That being the custodian of the ICD, he knew that it is their responsibility to account for the cargo that had entered the ICD, stuffing the cargo before the jurisdictional custom officers and dispatch of the cargo up to the Gateway Port. That on obtaining the invoice and packing list from the exporter, they handover the same to the CHA stationed at Chennai. With regard to the disputed shipping bill and container, filed in the name of M/s Baba Rocks and exported through their ICD, the representative of Baba Rocks provided the export invoices along with packing list. Based on the above they requested the CHA to prepare the shipping bill and other customs related documents. That thereafter granite blocks pertaining to be black granite, relevant to the shipping bill was brought to their ICD on 4 August 2007. The granite blocks were stuffed in containers and sealed before the customs officers on 6 August 2007 itself. These two containers were loaded on truck No. TN 28 K 5635 and send to the gate way port at Chennai. That Mr. K. Prab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainers to Singapore. The said Shri Raja is having office next door to their office, who informed them that rough blocks would be stuffed at ICD. The requisition letter of M/s Sungrace Logistics were signed by Shri Raja only, and the plot permission was collected by him. That based on the plot permission the empty containers were released on 1 August 2007 and since the goods were to be stuffed at ICD, on the overall consideration, they issued the form 13, to offload the container at CCTL. 13. Further, upon enquiry made at the given address of the said K. Prabhakaran at No. 93/1 (new No. 191) Linghy Chetty Street, Chennai 1, no one was found. The Landlord of the said promises stated that he does not know any person named Mr. K. Prabhakaran, no such person has ever resided at the given address. Summons issued on the said Mr.K. Prabhakaran at the said given address, were returned by the postal authority with the remark not known. Upon verification of cell phone No. 9884976922, which was being used by Mr. K. Prabhakaran, it was revealed that the connection was issued to Mr. E. Joseph. Further upon enquiry Mr. E. Joseph was also not found at the given address. Thus, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant was absent on call. As the appeal is about 10 years old it was decided to dispose of the appeal ex parte. Accordingly, heard the Ld. AR for revenue and perused the records. 18. Having considered the submissions of Ld. AR and on going through the records, we find the following anomalies: In the examination/cross-examination of Shri Ram Ganeshan, Head CFS and Marketing Chennai Container Terminal Private Ltd., stated that the DRI officials had intercepted the export cargo in question, outside the CCTL. Thereafter, the DRI officials had escorted the truck with the containers into the CCTL and that after examination of the said cargo, the containers were handed over for safe custody. He also stated that the truck which hauled the containers was neither detained nor seized. Only the containers were seized with the goods by the DRI officials. Whereas on the contrary in the Mahazar/punchnama it has been mentioned that the containers were lying in CCTL, which is wrong. It was also submitted that if the truck which hauled the containers had also been seized, the investigating agency could have definitely nabbed the real culprit Mr.K. Prabhakaran, the mast ..... X X X X Extracts X X X X X X X X Extracts X X X X
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