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TMI Blog2024 (7) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... for a cogent proof, suspicion if any is required to be duly corroborated with independent evidence, which in the present facts and circumstances on record is non-existent. The department has thus failed to establish any knowledge on part of the exporter of the fact of replacing the High Alumina Refractories Fire Bricks with red sanders wood logs and camouflaging them behind a layer of High Alumina Refractories Fire Bricks. The appellant cannot be proceeded against merely on assumption and made a victim of circumstances holding them liable for contraband found to be stuffed inside the container. This is all the more so, as the goods were stuffed under supervision of Central Excise officers and seals were found to be intact and untampered at the time of examination of cargo. The order of the lower authority cannot therefore be sustained. Appeal disposed off. - HON BLE SHRI R. MURALIDHAR , MEMBER ( JUDICIAL ) And HON BLE SHRI RAJEEV TANDON , MEMBER ( TECHNICAL ) Shri Arijit Chakraborty Shri N. Chowdhury , both Advocates for the Appellant Shri S. Debnath , Authorized Representative for the Revenue ORDER Per : RAJEEV TANDON : The appellants are manufacturers/exporters of High Alumina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of which two of such numbers were also confirmed and corroborated by the CHA firm on which telephone numbers they would have verbal communication regarding various necessities for the export shipment. Notably no Letter of Credit or Bank Guarantee was furnished by the importer and it was only by way of assurances of Shri R.K.Singh, whom Late Vikram Bole is said to have met 10-12 times during the period at the time of export. Remittances would reach the account of M/s. Katras Ceramics Refractories, Dhanbad within 90 days of shipment. It is also of interest to note that a token amount in cash was paid by R.K.Singh towards security deposit to act as a guarantee for receipt of remittance of export. It is observed from the records of the case that all those investigated, have denied any knowledge as to how the Red Sanders wood logs were stuffed in the container in which High Alumina Refractories Fire Bricks were loaded under the Central Excise supervision at the factory premises. It also comes out from the records that while transport arrangements were made by R.K.Singh on each of the occasions, he remained present at the factory premises with vehicle and container (as per the statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the entire operation which included certain activities as specified by him aforesaid were at the behest organized and executed by Shri R.K.Singh. That being the situation, affixing responsibility on other individuals for certain acts undertaken behind their back, unknown to such persons and without any evidence to indicate complicity on the part of such persons cannot therefore be the cornerstone of holding such persons liable to punitive action in the absence of the alleged kingpin Shri R.K.Singh not being subjected to any enquiry. We also feel that subjecting the exporter, who had no role to play in the matter after the goods left his factory and loading of such goods in the said container were executed under supervision of Central Excise authorities, is grossly unfair and unwarranted. The investigations have failed to bring to fore any knowledge about the conduct of the aforesaid crime on the part of the exporting firm as well as the Director who are the appellants in the present matter. For ready reference and better appreciation of the subject, it would be imperative that the impugned section under which penalty has been imposed on the two appellants is gone through. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action against the exporter. The fact that the export goods were stuffed in the container in presence of Central Excise officer and sealed in their presence only advances the case for exoneration from penalties of the exporter. It is further noted from records that the exporters have lodged necessary complaints with the jurisdictional Police authorities, in respect of their goods which were loaded on to the impugned containers and subsequently not found, vide their letter dated 18.04.2014, actively followed it up vide communication dated 18.05.2014, re-asserting for seeking FIR numbers in the matter and reminding the authorities vide their communication dated 29.10.2014. Also on record is seeking of a detailed communication to the Police authorities dated 24.05.2014 inter alia pleading for laying their hands on the alleged intermediary - Raj Kumar Singh, who had made a representation to the exporting firm that he would make a security deposit with the firm by way of cash of a certain percentage of the invoice value and that the title of the document would thereafter be given to him, which goods he would send to the foreign buyers and after remittances were received, the said secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the exporting firm. It is settled law that conjectures and loose circumstances cannot replace the need for a cogent proof, suspicion if any is required to be duly corroborated with independent evidence, which in the present facts and circumstances on record is non-existent. The department has thus failed to establish any knowledge on part of the exporter of the fact of replacing the High Alumina Refractories Fire Bricks with red sanders wood logs and camouflaging them behind a layer of High Alumina Refractories Fire Bricks. The substitution of loaded goods at the factory premises en route the docks, remains a mystery in so far as to when where and who did it and is not borne out from the enquiries conducted by the department. It would be thus a gross error in penalizing the exporter for an act for which no evidence is led to fasten him with the crime. The following decisions can be adverted to, in this regard. :- (i) A.K.Saha vs. Commr. of Customs (P), Calcutta [2001 (136) E.L.T. 303 (Tri.-Kolkata)]. (ii) Dhakad Metal Corporation vs. Commr. of C.Ex. S.T., Daman [2015 (330) E.L.T. 561 (Tri.-Ahmd.)] (iii) Kiran S. dixit vs. Commr. of Customs, Hyderabad [2014 (301) E.L.T. 337 (Tri.- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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