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TMI Blog2022 (2) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... osys Services Pte. Ltd. Singapore. Later switch bill of lading obtained for deviating the goods to PT Gita Mandiri Abadi, Jakarta, Indonesia. The exporter Tropical Biomarine Systems Pvt. Ltd. has not informed the customs authorities as to the diversion of the goods. They have obtained the switch bill of lading issued by their freight forwarder - When the goods reached Jakarta, the same were detained on specific intelligence received by DRI. They were opened for examination by Indonesian Police and sent for test to laboratory. It is noted in para 4 of the adjudication order that the substance in the 15 bags was in the nature of white powder and not of the same consistency as the remainder of the shipment which granular and brown. The bags which contained the white powder substance were all imported with a small x on the bottom of the bag differentiating these bags from the rest of the consignment. After conducting test, the substance was found to be Norephedrine. There is no mention of the name of Tropical Biomarine Systems Pvt. Ltd. who is the exporter of the goods or the name of Shri Rajesh Khanna. Even the name of the consignee Enbiosys Services Pte. Ltd. or PT Gita Mandiri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsul (Eco), Embassy of India, Hong Kong intimated that the Indonesian National Police had examined the cargo in the container. They recovered 337 kilograms of a chemical substance in 15 bags concealed along with the declared goods. On preliminary examination, the chemical in these bags were found to be pseudo ephedrine, a precursor chemical scheduled under the NDPS Act, 1985. In the letter dated 29.3.2007, Shri Indradi Thanos, Police Brigadier General, Director Narcotics and Organized Crime, Jakarta stated that the substance under question was a white powder and not of the same consistency as the remainder of the shipment. These 15 bags in which the suspect substance was shipped were marked with a small x on the bottom of the bag differentiating the bag from the rest of the shipment. The bags were marked with the name Eurasia Nutritious, GF-A, Jamals, Ras Bhavan, Chennai and also mentioned as Shrimp Feed Premix . The marking of x on the bottom of these bags was to differentiate the bags from the rest of the shipment. These facts were also corroborated with the photographs by the container line. Subsequently, on 25.4.2007, the Consul (Eco), Embassy of India, Hong Kong intimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der) to switch the bill of lading and deviate the destination of the consignment. This was done on the request of the consignee M/s. Enbiosys Services Pte. Ltd. Singapore. He stated that he did not know any person related to PT Gita Mandiri Abadi of Indonesia to whom the consignment was deviated by raising switch Bill of Lading. It was stated by him that he was a Director of Eurasia Nutritions and the other Directors are Bernard Devresse and also his father Shri Vinod Khanna. Shri Sacheeb was the General Manager of the company looking into the day to day affairs. Shri Sacheeb was working in Eurasia and that he used to act as per his instructions. The registered address of Eurasia Nutritions as Mahaveer Chambers, 103, Nyniappa naicken Street, Chennai 3. That the records and activities were maintained at the factory. 7. On being asked about the seizure of 337 kilograms of the chemical substance in 15 bags concealed in the declared cargo, he stated that he had no knowledge about it. He was the partner of Enbiosys India and the other partners were Shri S.V. Dhaneswar and Debananda Naik. The office and the lab of Enbiosys India were situated on the ECR Road, Narkanam, Tamil Nadu an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasia Nutritions Pvt. Ltd, Shri Rajesh Khanna, Shri Vinod Kumar Khanna and Shri S.V. Dhaneshwar to show cause as to why (i) 337 kilograms of Norephedrine having street price of ₹ 12 crores shall not be held liable for confiscation (ii) why 7700 kilograms of shrimp feed premix, 505 kilograms of MPEX shrimp feed and 60 kilograms of golden spawn as declared in the subject shipping bill dated 31.1.2007 and used for concealing restricted undeclared goods shall not be held liable for confiscation (iii) penalty under section 114 of the Customs Act, 1962 shall not be imposed upon them for their active involvement in the subject export which rendered export goods liable for confiscation under section 113 of the Customs Act, 1962. 11. After due process of law, the adjudicating authority passed the following order:- (i) I hold 337 kgs of Norephedrine valued at ₹ 3,13,511/- (Rupees Three Lakhs Thirteen Thousand Five Hundred Eleven only) and exported with other goods covered under the Shipping Bill No.2567339 dated 31.01.07 as liable for confiscation under Section 113 (e), 113 (g), 113 (h) 113 (i) of Customs Act, 1962. (ii) I hold the rest of the consignment valued at &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hasil Serbuk berwarna putih dari masing masing plastic Kode X1 X15 Kromatografi Lapis Tipis (KLT) dan Gas Chromatographi Mass Spectromter (GC_MS) Positif, Norephedrine Unofficial Translation 1. Referring to an application for assistance in temporary investigating by laboratory the criminal evidence goods in the name of the suspect SURIMAN BUYUNG alias LUKAS, No.Pol : B/214/III/2007 Dit narkoba dated 30 March 2007, concerning 15 (fifteen) small plastic bags containing white powder weight @ 20 (twenty) gram gross with code X - 01a to X- 15a. 2. Referring to aforesaid point 1 (one), for the time being it has been checked in the laboratory the evidence goods : Evidence goods Checking Result White powde r Code X 01 a to X -07 a GC MS Phenylpropanolamine (Norephedrine) 3. Statement Phenylpropanolamine (Norephedrine) is including in the group I of precursor based on the Decree of Head for Drug and Food Controlling Board number . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as communication dated 27.3.2007 to the Consulate General of India, Hong Kong was also not provided. The documents seized relating to imports and exports for the last three years and the statements of Shri Mohan Sundar dated 5.4.2007 and Shri Karthik Kumar recorded by the officers of DRI were not provided to the appellant. 18. Without prejudice to the above arguments, it was submitted by learned counsel that the department alleges the goods to be Norephedrine. Even assuming without conceding that the appellant had misdeclared the description of the goods in the shipping bills, the alleged goods in the nature of Norephedrine are not restricted or prohibited for export. This fact has been admitted in para 28 of the Order in Original. Therefore, there was no necessity for the appellant to conceal or misdeclare the description of the goods when the item is freely exportable. 19. The learned counsel argued that the penalty imposed on appellant No. 2, 4 and 5 is unwarranted as they have not done any act in relation to the goods so as to render the goods liable for confiscation in terms of section 113 of the Customs Act, 1962. One of the mandatory prerequisites for imposing pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onesia to assist in taking samples if he was genuinely interested in the goods. Even after coming to know that the goods have been detained, there was no effort on the part of the appellant by deploying some one at Indonesia to assist the investigation. 22. The learned AR submitted that retest of samples is not at all warranted in the present case as the test report from the lab in Indonesia has categorically identified the goods to be Norephedrine. The appellant has requested for retest merely alleging that the translated version bears the heading unofficial translation . Further the goods having been detained at Indonesia and the test also having been conducted from there, the appellant could not request for retest in the proceedings before the adjudicating authority. 23. The learned AR adverted to the findings of the adjudicating authority in para 24 of the Order in Original. On examination of cargo, it was found 15 bags could be easily differentiated from the rest. A small mark x was put on the bottom of the bags, though the bags looked similar to other bags. The appellant has not been able to give any plausible explanation about the markings of 15 bags which contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence is committed by such company unless it is proved that the offence was committed without their knowledge. The appellant Shri Rajesh Khanna, Shri S.V. Dhaneshwar, Shri Vinod Kumar Khanna have not adduced any evidence to rebut this presumption. He prayed that the appeals may be dismissed. 26. Heard both sides. 27. At the outset, it has to be stated that though in the Show Cause Notice, the value of the the alleged goods in the nature of Norephedrine was estimated and arrived at ₹ 12 crores, the adjudicating authority in his findings recorded in para 32 has worked the price of 337 kilograms of Norephedrine to be ₹ 3,13,511/- only. The department has not filed any appeal against this finding of valuation arrived by the adjudicating authority. The same has become final. The relevant part of said paragraph is reproduced as under:- . I find that DRI has taken the total value of the 337 kgs od Norephedrine as Indian ₹ 12,00,00,000.00 (Rupees Twelve Crores only) which was the estimated value furnished by the Indonesian Police on the basis of street price of almost $3 million taken from the website (http://www.abc.net.au/news/stories/2007/04/05/1 891421 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants has pointed out many discrepancies in the test report. The relevant portion of the test report has already been reproduced above. The date in the test report (Indonesian language) is shown as 30th March 2007. However, in the unofficial translated version, the date is mentioned as 8.1.2007 at the bottom. In the reply filed to the Show Cause Notice itself, the appellant has pointed out all these discrepancies. In para 5 of the reply to Show Cause Notice dated 18.11.2011, the appellant has pointed out the discrepancies with regard to the dates mentioned in the alleged original test report (Indonesian language) and the unofficial translation. Apart from the difference in the date, it is seen that the sample code is noted as X1 X15 in the test report (Indonesian language) whereas in the unofficial translation, the sample code is shown as X-01a X07a. Further, these test reports mention that the goods in plastic wrappers. The goods in the present case were packed in bags. There is no mention of any plastic wrappers. There is difference in the quantity also. As per para E of test report, the goods kept in 15 clear plastic wrappers, the total net weight is 277, 7019 grams. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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