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TMI Blog2024 (5) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. Further how can it be that goods were being illegally exported through unidentified routes be subject matter of the Bill of Entries filed with Nepal Customs. We are at loss to understand how the Bill of Entries could have been filed without any export documents from the exporter from India. As there is no evidence to establish that even a single gram of the goods allegedly to be exported illegally have been recovered/ seized/ confiscated or any document to that effect found we do not find that the appellants could have been proceeded against under the provisions of Section 114 of the Customs Act. The entire case made against the appellants for imposing penalty u/s 114 cannot be upheld even on merits. Appeals are allowed. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Badri Narayan Khandelwal in person for Appellant No.1 2 for the Appellant Request for virtual hearing for Appellant No.3 4 Shri Manish Raj, Authorized Representative for the Respondent ORDER These appeals are directed against the Order in Appeal No 377-380-CUS-APPL-LKO-2018, dated 17/07/2018 of the Commissioner (Appeal) Customs, GST Central Excise Lucknow. By ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Penalty should not be imposed on them under Sections 114 of the said Act. 2.5 Further, Appellant 2, Appellant 3 and Appellant 4, were called upon to show cause as to why penalty should not be imposed upon them under Section 114 of the Customs Act, 1962. 2.6 This show cause notice was adjudicated as per the Order-In-Original referred in Para 01 and aggrieved appellants filed the appeal before the Commissioner (Appeals) which has been decided as per the impugned order. 2.7 Aggrieved appellants have filed these appeals. 3.1 Have heard Shri Badri Narayan Khandelwal for the appellant 1 2 who is appearing in person and making submission as being not in a position to engage any counsel. 3.2 Despite notice none appeared for the Appellant No.3 4. It was informed that the counsel for the Appellant No.3 4 has asked for Virtual Hearing. 3.3 We have heard Shri Manish Raj, Authorized Representative for the Revenue who reiterates the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submission made in appeals and during the course of argument. 4.2 For confirming the order imposing penalties learned Commissioner (Appeals) has observed as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t possible. The Hon'ble Supreme Court in the case of CC Vs D. Bhoormull, reported in 1983 (13) ELT 1546 (SC), has held that the Department is not required to prove its case with mathematical precision, but what is required is the establishment of such a degree of probability that prudent man may on its basis believe in the existence of the facts in issue. Therefore, in the circumstances of the case, confiscation of the impugned goods and penalty on the appellant are justified. Relying on the ratio of the BHOORMULL case, Hon'ble Supreme Court in the Customs case of BALUMAL JAMNADAS BATRA, reported at 1983 (13) ELT 1558 (SC), has held that conviction and confiscation was justified if the circumstantial evidence proved that the goods were smuggled. 13. In the instant case the impugned 290.50 MT rice was billed by Appellant- 1 2 to M/s R. S. Traders, Jogbani, whereas the goods did not reach there. From the combined reading of the statements of all the appellants it is evident that there was a tacit understanding among themselves and concerted action by them to bill the goods to Indian firms having TIN, and divert the consignment to Nepal by filing Pragyapan Patra (ie bill of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been produced at any time. The entire case is based upon certain Bill of Entries which have been noted by the Enforcement Directorate during the course of investigation which have been filed with Nepal Customs. None of these Bill of Entries refer to any documents issued by any of the appellant. Further how can it be that goods were being illegally exported through unidentified routes be subject matter of the Bill of Entries filed with Nepal Customs. We are at loss to understand how the Bill of Entries could have been filed without any export documents from the exporter from India. 4.5 Entire case has been made on the basis of the statement of M/s R S Traders to whom from the records of the appellant 1 it was found that a certain quantity of non basmati rice was sold. M/s R S Traders have in his statement avered that he only dealt in Masoor Daal , and has not purchased a the goods from Appellant -1. Even if the said statement is accepted true then also it does not establish that the goods of Appellant 1 were exported or taken to port/ border for exporting. Suspicion however strong could not have been basis for proceeding against the appellant in absence of any cogent evidenc ..... 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