Page 200 - ELT_15th May 2020_VOL 372_Part 4th

590 EXCISE LAW TIMES [ Vol. 372

of Mr. Sanath Kumar and Sahul Hameed, he used to supply the Red sand-
ers at the given place/destination; that recently he had given Sanath Kumar
deliver of 7 tonnes of Red Sanders at Ludhiana around 11-10-2011, he ex-
ported the same in the name of M/s. Bhatinda Ceramics, Punjab to M/s.
Babgusa Enterprises Malaysia; that the Red Sanders was given by one Mr.
Chellathambi at Delhi and the same were transported to Ludhiana by driv-
ers arranged by Sanath Kumar; that Shri Sanath Kumar had also arranged
export of Red Sanders to Shahul Hameed through M/s. Deepak Ceramics,
Muzaffar Nagar, UP, M/s. R.R. Industries Khurja, M/s. D.R. Foods, Karnal,
M/s. Sandeep Soap Factory; that the Red Sanders exported in the name of
above said firms was purchased from AP; that Sanath Kumar had informed
him that he had been exporting the Red Sanders by replacing the original
stuffed containers with the Red Sanders and the seal of the containers nor-
mally was safe but the container was opened by removing the rivets on the
handle of the door of the container and some times, the container was
opened by breaking the seal and replacing them with duplicate seals and
that he did not know where Sanath Kumar was arranging the duplicate
seals.”
6. From the paras 55 and 88 of the impugned order, it is quite evident
that appellant have not been investigated in the case of present seizure and con-
fiscation of red sanders. The statement that has been relied upon by the Commis-
sioner in para 88, is also in case of some other investigation, seizure and confisca-
tion. It is really irony that it has been admitted that even the true identity etc. of
the appellant has not been established in the present case and the Commissioner
has imposed penalty even when the investigations against the appellant are still
pending in the present case. It is also not understood as to how and on basis of
which evidence linkage has been established between the appellants and present
consignment of Red Sanders confiscated in the impugned order.
7. Section 114(i) of the Customs Act, 1962 under which the Commis-
sioner has imposed penalty on the appellants is reproduced below :
“Section 114. Penalty for attempt to export goods improperly, etc. - Any
person who, in relation to any goods does or omits to do any act which act
or omission would render such goods liable to confiscation under Section
113, or abets the doing or omission of such an act shall be liable, -
(i) In the case of goods in respect of which any prohibition is in force un-
der this Act or any other law for the time being in force, to a penalty
not exceeding three times the value of the goods as declared by the
exporter or the value as determined under this Act, whichever is the
greater;
Plain reading of this section shows that this section is applicable only in respect
of the person who has done any act of omission or commission qua the goods
held liable for confiscation under Section 113. Any act performed by the person
in respect of any other goods which may be similar/same/identical, but not the
subject matter of the proceedings cannot be reason for imposition of penalty un-
der this section. Thus without leading the evidence to the effect of establishing
the act of omission/commission in relation to the goods confiscated in these pro-
ceedings i.e. 15.010 MTs of Red Sanders, illegally exported in container No.
UACU 8260249-40’, the penalty imposed under this section cannot be sustained.
8. However as we have recorded in earlier paras that number of per-
sons including the present appellant have not been investigated in this case, and
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