P.K. Desai, Member (J)
1. Both these appeals are directed against the Order-in-Original No. 11/27/87-Pr, dated 6-9-1988 passed by the Additional Collector of Customs & Central Excise, Goa, ordering absolute confiscation of 250 TV sets and 935 cartons containing hay and bricks under Section 113 of the Customs Act and imposing personal penalty of Rs. 5.00 lacs both on Mr. S.M. Walhekar and Mr. Pratap L. Muchandi, the appellants herein, under Section 114 of the Customs Act.
2. As common questions of law and facts are involved and the appeals arise out of the same order of the Additional Collector, both the appeals are decided by this common order.
3. The facts of the case are that one Arab Dhow by name "Al Yakoobi" which arrived at Marmagoa Port on 11-8-1987 was to take export consignment of 1250 TV sets to Dubai, after discharge of the import cargo. On 20-8-1987, 10 shipping bills, for the said consignment, were presented by one Shri Prakash K. Kamat, the Customs House Agent, for 1,000 black and white TV sets and 250 colour TV sets under a drawback claim for Rs. 4,02,500/- (cif value US $ 1,62,000). All the shipping bills were filed for and on behalf of M/s. Royal Electronics Pvt. Ltd. and were signed by Mr. Shashikant M. Walhekar (the appellant in Appeal No. C/876/88-Bom.) as the chairman of the said company. The invoices were signed by Shri Pratap L. Muchandi (the appellant in Appeal No. C/877/88-Bom.) and the consignee was M/s. Steel Palace at Dubai. The consignment was brought to the Port on 26-8-1987.
Though the shipping bills were filed for 1250 TV sets, only 1185 cartons were brought to the Port, which were 65 less than those shown in the shipping bills. The cartons received were stored in MPT Warehouse in 'E' shed. The vessel Al Yakoobi, however, sailed out on 27-8-1987 under the instruction from the consignors, without loading the export cargo, namely the said consignment of TV sets and the consignors tried to retrieve the consignment from the customs. On suspicion having been raised as to the unusual conduct, the whole consignment was examined by the staff of Rummaging and Intelligence section and it was found that out of 1185 cartons only 250 cartons actually contained TV sets, whereas 935 cartons contained only hay and bricks so as to equalise the weight of all the cartons. All the cartons were seized under Panchnama which commenced on 31-8-1987 and ended on 2-9-1987. It was alleged that both the appellants who were the Chairman and Managing Director respectively of M/s. Royal Electronics Pvt. Ltd. intended to export a fake consignment under drawback claim and thereby defraud the Government to the tune of several lacs of rupees. It was also alleged that the appellants had removed only 300 pieces of 14" balck and white TV sets and 160 pieces of 20" colour TV sets from their factory and thereafter they had packed only 250 sets in the export consignment and had removed other sets for sale in open market. It was also alleged that the cartons containing TV sets alongwith those containing hay and bricks were brought to the docks for export but when they came to know that as drawback claim was made, all the boxes would be checked by the customs authorities and hence apprehending the detection of the fraud that they intended to practice, they decided to withdraw the same and by giving some false excuse, sent the vessel without loading the goods and tried to retrieve the consignment without detection. During the course of investigation, several statements of Pratap L. Muchandi, the appellants in Appeal No. 877/88, were recorded. Shri Shashikant L. Walhekar, the appellant in Appeal No. 876/88, was however, not available and hence his statement could not be recorded. The statements of some others were also recorded. Ultimately a show cause notice dated 26-2-1988 was served on both the appellants as well as other six persons, who were alleged to have abetted or assisted the appellants in this deal. Under the show cause notice, the appellants were asked to show cause as to why the consignment should not be confiscated under Section 113(i) of the Customs Act and why no penalty under Section 114 of the Customs Act sould be imposed.
4. Neither of the appellants filed their reply to the said show cause notice on the ground that copies of certain documents were not given. They also did not appear for personal hearing, when they were called upon to do so. The Additional Collector, proceeded to adjudicate the matter upon the evidences available before him and ordered confiscation of the entire export consignment apart from imposing a penalty of Rs. 5,00,000/- on each of the appellants.
5. Both the appellants have challenged the order of both the confiscation as well as imposition of personal penalties.
6. Shri Alimchandani, the learned consultant, appearing on behalf of Mr. Walhekar, the appellant in Appeal No. 876/88, challenged the validity of show cause notice on the grounds that :-
(a) Chairman has been described as a partner.
(b) Though the notice is not issued for confiscation under Section 113(d) of the Customs Act, the show cause notice alleges attempt on the part of the appellant and seeks his explanation for the same.
He also contended that only the appellants are held liable to penal action, whereas the others, who actually filed the shipping bills are exonerated. Shri Alimchandani also pleaded that the adjudication order is passed in violation of the principles of natural justice as the appellant has not been supplied with the copies of the documents though specifically demanded by him. In this context he relied on the decision reported in Ranji Export Private Ltd. v. Collector of Customs - 1985 (21) E.L.T. 353 (Mad.). He submitted that the adjudicating authority has arbitrarily decided the relevancy of the appellants. It should be the appellant only who can decide whether the documents would help him or not. He also submitted that no personal hearing was given to the appellant before the adjudication order was passed. Shri Alimchandani also challenged the validity of the order by submitting that though an attempt to export was alleged, no finding is given by the authority, as regards any attempt on the part of the appellant. He also submitted that the consignor party was a private limited company and that the appellants who were merely office bearers cannot be punished as per law, for any act of the company. He drew our attention to the provisions of Section 140 of the Customs Act and submitted the decision reported in 1984 Tax Law Journal 2405. He submitted that the show cause notice is not on the company and that the adjudication proceedings, therefore, are bad in law. On the merits, he submitted that the provisions of Section 113 could not be attracted as the shipping bills were withdrawn even before they were processed or even examined by the officers. He also submitted that as per the Policy AM 1985-88, quality control certificate was required to be produced before the export, which was not produced in this case and the shipping bill submitted without such a certificate cannot be said to be a valid shipping bill. In any case shipping bill could not have been passed, without such a certificate and export would not have been permitted and that till the shipping bill is passed, there could be no attempt on the part of the appellants to export and as such charge under Section 113(i) cannot be levelled, merely because the shipping bills have been filed. He also referred to Section 46 of the Customs Act and submitted that goods have to be brought at the time of filing of the shipping bill and that any shipping bill filed prior to bringing of the goods is not a valid one. He submitted that shipping bills were filed on 20-8-1987 whereas the goods were brought to the Port only on 26-8-1987 and as such shipping bills filed were not in compliance with the statutory requirement. He also submitted that some queries were raised by the department on filing of the shipping bills, which indicated that the shipping bills were not accepted by the department. Such a shipping bill cannot be said to have been verified. He further argued that the order-in-original only makes mention of Section 113 and does not specify exactly under what clause of the section the order is passed. He submitted that the order-in-original suffers from vagueness and cannot be sustained.
7. He also submitted that there is nothing on record to implicate the appellant Walhekar. It is only in the statement of Mr. Muchandi that Walhekar stands implicated. He submitted that Mr. Muchandi's statement being in the nature of that of the co-accused, cannot be accepted unless it has been corroborated on the material particulars and stated that even otherwise Mr. Muchandi has retracted from his statements, which makes his statements not admissible in evidence and that no reliance can be placed. Shri Alimchandani, therefore, submitted that the order of the adjudicating authority being bad in law is void, inoperative and that the order of confiscation of the goods as also the imposition of personal penalty, is bad in law.
8. Shri Sonavane, the learned consultant, appearing on behalf of the appellant Shri Pratap L. Muchandi, the appellant in appeal No. 877/88, in addition to what Mr. Alimchandani pleaded, submitted that the consignment was brought on 26-8-1987 and the vessel sailed without loading the consignment on 27-8-1987. On 29-8-1987 instructions were given to the Customs House Agent to take back the goods and it was only on 31-8-1987 that the R & I Division of the Customs started drawing Panchnama. He submitted that the goods were not examined for export before the vessel sailed of and the vessel did sail without taking cargo. Under the circumstances, there can be no question of entry of goods for attracting the provision of Section 113(i) of the Customs Act. He also submitted that the identity of the goods have also not been established. Drawing our attention to the Panchnama drawn by the department, he submitted that the goods seized were lying in 'D' shed, whereas in the show cause notice, the goods which were sought to be confiscated were those which were lying in 'E' shed. He submitted that the show cause notice as also the adjudication order pertain to the goods in 'E' shed whereas the goods seized were from 'D' shed. He submitted that when the identity of the goods have not been established, the show cause notice is not valid as it ought to be for the goods seized under the Customs Act. According to him, the adjudication should be for the goods lying in the 'D' shed and that the appellants were not answerable to the show cause notice, as it pertains to goods lying in 'E' shed, whereas the goods seized were lying in 'D' shed.
9. Shri Sonavane, the learned consultant, also submitted that it is not correct to hold that the whole consignment did not correspond with the description in the shipping bills. At least 250 TV sets were found and insofar as they are concerned, they cannot be confiscated under Section 113 of the Customs Act and that the order of confiscation of the full consignment is not valid. He further submitted that though the appellants are alleged to have attempted the export, no show cause notice is issued invoking the provision of Section 113(d) of the Customs Act. He submitted that Section 113(i) has no independent existence and it can only be alongwith Section 113(d) that Section 113(i) can be invoked. He submitted that there was no attempt on the part of the appellant to export the goods and submitted that the attempt is an act where the last proximate act is loading of the goods and till the shipping is not done, it is only the preparation and not an attempt so as to attract any of the provisions of the Customs Act. He also drew our attention to Section 2(19) and read the same alongwith the provisions of Section 113 and submitted that only "export goods" are liable to confiscation, and submitted that here, before the investigation were initiated, the vessel has already sailed without taking the consignment and as such the consignment was not an "export goods" and the shipping bills filed which were for the purpose of export by the vessel Al Yakoobi, cannot be said to be surviving. Search commenced and the suspicion arose only on 31-8-1987, by which date, the shipping bill had become infructuous and the goods had lost the status of being export goods. According to him, therefore, no offence can be said to have been committed by the appellant. He also submitted that though the shipping bills were filed on 20-8-1987 they were not passed through the process laid down in Sections 16, 17, 39, 40 and 51 of the Customs Act and that, therefore, the goods had not become the "export goods". He also submitted that the goods were not examined for export vis-a-vis Al Yakoobi and hence the provision of Section 113(i) cannot be attracted. He also raised a contention that the shipping bills were attached and as such they could not amend the same as contemplated under Section 149 of the Customs Act. He also pleaded that Section 50 of the Act cannot stand attracted here as it has nothing to do with the misdescription made in the shipping bills. In this context, he relied on the descision of the Calcutta High Court in the case of Bird & Co. v. Assistant Collector, AIR 1971 Cal. 62. He also submitted that at-least 250 TV sets were as per the specification mentioned in the shipping bill and that, therefore, order confiscating these 250 TV sets is bad in law. He also relied on the provision of Section 140 of the Customs Act and submitted that the consignor was a private limited company and in such case, there is no liability on the office bearers and in support thereof he cited the decision one reported in AIR 1980 SC 1111. He also submitted that the statements of Mr. Muchandi cannot be taken into consideration as they have been subsequently retracted by him under his letter dated 30-6-1988. He submitted that Section 113(i) of the Customs Act has been wrongly invoked and that, therefore, the order of absolute confiscation, as also the order of imposition of penalty are bad in law.
10. Shri K.M. Mondal, the learned SDR, on behalf of the department, narrated sequence of occurence and pleaded that here was a clear case of conspiracy and the amount involved is roughly to the tune of more than Rs. 14.00 lacs under drawback claim and other export benefits. He submitted that Mr. Muchandi has clearly admitted the whole conspiracy in his statements recorded by the department and that those statements stand fully corroborated by the other person particularly Mr. Kamat and R.B. Patil. He submitted that the retraction being at a much belated stage has to be ignored. He cited certain judicial pronouncements to substantiate his plea that retraction at a belated stage has to be ignored. He also submitted that besides Mr. Muchandi some other persons have also stated about the whole conspiracy, and the appellants have not demanded any cross-examination of those persons meaning thereby that they admitted whatever was stated by those persons. Shri Mondal also submitted that though the order, confiscation is under Section 113 only and there is no mention about the sub-clause made applicable but that does not make the order bad in law, inasmuch as the show cause notice very specifically mentioned as to which is the sub-clause invoked in the adjudication proceedings. According to Shri Mondal, there was a deliberate attempt on the part of the appellants to export the goods under the drawback claim and that the case squarely falls within the ambit of Section 113(i) when the same is read alongwith the provision of Section 50 of the said Act. Shri Mondal submitted that this can also be a case falling under Section 113(d) of the Customs Act but when the show cause notice is not issued for a breach under Section 113(d) he would not touch on the same. He also submitted that mention of shed 'D' in the panchnama and shed 'E' in the show cause notice and in the order-in-original makes no material difference as the complete description of the goods sought to be attached has been given in the show cause notice. Moreover, the appellants have at no stage prior to this, pleaded that the show cause notice was for the goods other than those belonging to them. He submitted that even at this stage, both the appellants categorically plead for release of 250 TV sets confiscated under the said order. When there was no misunderstanding on the part of the appellants as regards the identity of the goods and when the show cause notice bore complete description, so as to leave no scope in the minds of the appellants to doubt that the show cause notice was not for the goods belonging to them, mere mentioning of D shed and E shed makes no material difference. He also submitted that though 10 different shipping bills have been filed, they were in a composite set and it is not possible to separate as to which shipping bill is for which consignment. When the genuine consignment and fake one are not possible to be identified under the shipping bills, the shipping bills have to be taken as a whole and whatever goods are sought to be exported under such shipping bills, the whole of the consignment is liable to be confiscated under Section 113 of the Customs Act. He then submitted that though the consignment was from M/s. Royal Electronics Pvt. Ltd., the investigation revealed that these two appellants who are the office bearers of the company, were directly responsible for the fraud and as such issuing notice only to them would not vitiate the proceedings. He agreed that the company could have been implicated as a party, but submitted that non-inclusion of a company makes no difference and the appellants could not disown their liability. He submitted that the appellants attempted to withdraw the export consignment only because they came to know of the probable examination by the customs before loading of the goods. He submitted that the appellants had done all that they had to do and that therefore there was no question of taking the view that the appellants merely made the preparation and that they have not attempted. At the same time, he submitted that the "attempt" as is sought to be interpreted does not stand attracted so far as the applicability of the provision of Section 113(i) of the Customs Act are concerned. He submitted that the appellants had deliberately attempted to defraud the Govt. and that the authority below has taken a lenient view by imposing penalty of Rs. 5.00 lacs on each. He submitted that the order of the authority below therefore calls for no interference.
11. We have considered the arguments advanced by the learned consultants and the learned SDR and have also perused the records available with us. Considering the same, following points arise for our determination :
(i) whether there is a denial of the principles of natural justice
(ii) whether the identity of the goods is established.
(iii) whether the case falls within the purview of Section 113(i) of the Customs Act.
(iv) whether the whole consignment is liable to confiscation.
(v) whether either of the appellants is responsible for the same consignment and is liable to be penalised.
11A. Before going to the points arising for our determination, we take up the admitted facts. 10 shipping bills under the drawback claim were filed on 20-8-1987, through the Customs House Agent Shri Prakash K. Kamat, by M/s. Royal Electronics Pvt. Ltd. for export of 1000 black and white TV sets and 250 colour TV sets. The drawback claim was for Rs. 4,02,500/-. Mr. Walhekar is the Chairman and Mr. Muchandi is the Managing Director of M/s. Royal Electronics Pvt. Ltd. The shipping bills were signed by Mr. Walhekar as the Chairman of the company and other documents namely invoices were signed by Mr. Muchandi. The shipping bills were entered in the Customs House and were assigned serial numbers. The consignee was M/s. Steel Palace of Dubai. The goods carried by S/BS were brought to Customs area on 26-8-1987. The goods were meant to be exported through vessel Al Yakoobi, which had come to the Port on 11-8-1987 and was lying in the port on that day, when the shipping bills were filed and the consignment was brought to the docks. The vessel however sailed on 27-8-1987 without taking any cargo. The goods were examined in the docks from 31-8-1987 to 02-09-1987 in presence of panchas, Customs House Agent Mr. P.K. Kamat and some employees of the company and some officers of the port trust and were seized. The shipping bills were for 1250 cartons, whereas the cartons received at the port were 1185 that is 65 cartons less than those shown in the shipping bills. Out of 1185 cartons, only 250 cartons contained TV sets and 935 cartons contained hay and bricks. The goods seized were covered under the shipping bills filed. Show cause notice was given on 26-2-1988, which was received by the appellants and their agents but no reply was given. The hearing of the matter was fixed on 25-8-1988, which was duly communicated to the parties. They however did not attend. Had the shipment been allowed, they would have earned totally the benefit of more than Rs. 14.00 lacs. Though Mr. Muchandi has retracted his statement, no other persons has retracted from the statements given.
12. Taking up the first point, it is the allegation of the appellants that they have been denied the right to have access of the documents and that there has been a patent violations of the principles of natural justice in conducting the adjudication proceedings. The learned consultants drew our attention to several letters prior and subsequent to issue of show cause notice demanding documents and submitted that the authorities did not concede to the demand. They also took us through the observation of the adjudicating authority in the order-in-original where it is mentioned that the documents demanded were not relevant to the case and hence not supplied. They emphasised that it was not for the adjudicating authority to decide the relevancy or otherwise, as appellants had to base their defence, which could be pre-judged by the adjudicating authority. While perusing the record, we find that there is one letter dated 3-8-1988 written by the Supdt. of Customs and addressed to both the appellants on their various addresses given as also to the other persons to whom the show cause notices were given (referring to the demand made by them) and it mentions as under:
"If you have any further grievance on this point you may personally call at this office and take copies of the relevant documents."
This letter which is admitted to have been received by the appellants and produced by them in the paper book supplied to us clearly indicates that there was no denial made by the department for supply of the copies. On the contrary the department had shown willingness to throw open all the documents which they had with them for inspection and for taking copies, if the appellants so desired. If, inspite of this, the appellants did not avail of this opportunity and went on writing letters reiterating their earlier demand, it cannot be said that they were denied the right to inspect the documents. On the contrary, it shows that the appellants themselves never wanted to avail of the offer made and for one reason or the other, they wanted to create this an issue and for delaying the adjudication proceedings initiated against them. We, therefore, cannot accept the plea raised by the appellant that there is violation of the principles of natural justice inasmuch as they were given reasonable access to all the documents. The department in all fairness, expressed their willingness to show whatever documents that the appellants wanted but the appellants have with their obstinate attitude, refrained from availing of this opportunity.
13. As far as the second point is concerned, a plea is raised that the identity of the goods is not established inasmuch as the Panchnama speaks of the goods lying in 'D' shed whereas the show cause notice and the order-in-original speak of the goods in 'E' shed. An argument was advanced that the goods confiscated are different from those attached under the Panchnama. At this juncture, the learned consultant Mr. Sonavane was asked as to whether his client was not claiming the goods under confiscation, Shri Sonavane did not give any satisfactory reply. In the later part of his arguments, however, he claimed the ownership of the goods and also advanced the arguments that order of confiscation was bad and that the TV sets confiscated ought to be released and returned to the appellants. On perusal of the show cause notice, clear description of the goods is given. The appellants had enough material to prove that the goods covered in the show cause notice are those seized under the panchnama and the whole adjudication proceedings has gone on the assumption that there is no discrepancy, as regards the identity of the goods.
It is for the first time before us that the plea of this type is raised. We however find no substance and reject the same. It remains the confirmed position that the goods seized under panchnama are the same for which show cause notice is issued and the adjudication proceedings have been initiated and order of absolute confiscation is passed. There is absolutely no question of mistaken identification or lacuna in the proceedings.
14. So far as the other three points are concerned, they can be dealt with simultaneously.
15. It is an admitted position that 10 shipping bills were filed on 20-8-1987, with drawback claim, for consignment of 1250 TV sets. The said shipping bills were signed by Mr. Walhekar, as the Chairman of M/s. Royal Electronics Pvt. Ltd. and pursuant thereof, 1185 cartons (65 less than those shown in the shipping bills) were brought to dock on 26-8-1987, for the purpose of export, under the said shipping bills. It is also an undisputed fact that when the consignment of 1185 cartons was examined only 250 cartons were found to have contained TV sets and the rest 935 cartons contained hay and bricks.
16. Section 113 of the Customs Act provides for confiscation of the goods attempted to be improperly exported etc. and specifies which of the goods are liable to confiscation under the said Section. Clause (i) of the same Section provides as under :-
"any dutiable or prohibited goods or goods entered for exportation under claim for drawback which do not correspond in any material particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect thereof."
To fall within the said clause, the goods must have been "entered for export". Section 50 of the Customs Act explains as to what is meant by "entry of goods for export". Sub-section (i) of the said section reads thus :
"The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form."
Sub-section (2) reads thus:
"The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents."
Reading of Section 113(i) with Section 50 of the Act makes it clear that as soon as the shipping bill in prescribed form is filed with the declaration at the foot of it by the exporter regarding truth of the contents of the shipping bills, and the claim of drawback is made thereunder, the same clearly falls within the ambit of Section 113(i). No further overt act is required for bringing the case within the mischief of the said section.
17. Examining the present case, the shipping bills are filed on 20-8-1987 with a declaration as to the truth at the foot of it by the Chairman of M/s. Royal Electronics Pvt. Ltd., which are duly entered in the Customs and are given serial numbers and pursuance thereto the consignment is brought in the port shed, when the vessel is ready awaiting this export cargo.
18. Thus even on the plain reading of Section 113(i) with Section 50 of the Customs Act and applying the facts of the case to the said provision, there remains no doubt that the present case squarely falls within the provision of Section 113(i).
19. When this is the position, it does not require us to go to any of the arguments advanced by the learned consultants, as none of them relates to the position of law as indicated above. However, for the purpose of keeping on record that the arguments were considered and were rejected by us, we deal with them.
20. The learned consultants laid much stress on the point that there was no "attempt" on the part of the appellants. They submitted that there was a distinction between an "attempt" and "preparation", and the attempt in the present set of circumstances, could only be said to have been committed, if the party had taken the last proximate action of getting the consignment loaded in the vessel. They submitted that here, they did file the shipping bills and did bring the consignment to the docks, but did not load the consignment in the vessel and actually instructed the vessel to sail without cargo. According to the learned consultants, at the best, the act of the party could be attributed to the act of preparation but not an "attempt" so as to attract the provisions of the Act. We, however find, on careful reading of the Act, that a person intending to export goods is, as per the law, required to enter the goods by filing the shipping bill and bring the goods to the customs area. If these two acts are completed, as per the law, he has made the attempt to export these goods. In this case, charge is under Section 113(i), where it is more precise and specific. Under Section 113(i) entering the goods for export under the claim of drawback, is the only requirement of falling within the mischief of the same and vide Section 50, "entry of goods for the exportation" is complete as soon as the Shipping Bill in the prescribed form is presented to the proper officer. As soon as that is done, and if the goods are found to be not corresponding in material particulars with the entry made in the Bill, the same squarely falls within the ambit of Section 113(i). No further overt act is required. It is not required whether the entered Shipping Bills have been passed or whether quality control certificate has been produced. The requirement is that the goods should have been entered for export and such goods covered by the entry are brought in the customs area. On these two aspects, facts stand undisputed against the appellants.
20A. It is also not correct to state that since the vessel has left without loading, they are not export goods, nor it can be held that Shipping Bills filed had become invalid. This is mainly because, the goods covered by the shipping bill entered for export have come into the customs area, which, on examination, were found to be different from the entry made. They, therefore, squarely attract the provisions of Section 113(i) of the Customs Act. The argument that goods were brought only later, is also not tenable because it is not disputed that these goods were brought for export through "Al Yakoobi", which was very much at the Port and Shipping Bills were filed for export of this consignment through that vessel.
21. The learned consultants tried to rely on several decisions of the High Courts as well as of the Tribunal. All these decisions, however, pertain to the cases where show cause notices were given only under Section 113(d). None of them deals with any show cause notice issued under Section 113(i). They are, therefore, not relevant to this case.
22. The argument was also advanced that Section 113(i) has no independent existence and it can only come into play when the charge is also under Section 113(d). It was tried to plead that both the Sections are thus inter-dependent. Reading the scheme of the Section it appears that each clause in Section 113 is distinct one. It is possible that Section 113(d) and Section 113(i) may not be mutually exclusive, they may co-exist and both may be invoked simultaneously but by no stretch of imagination they can be styled as inter dependent as to mean that Section 113(i) can be invoked only, if Section 113(d) is applied.
23. A plea was also raised that the goods were not "export goods". Our attention was drawn to Section 2(19) of the Act where the export goods have been defined as meaning "any goods which are to be taken out of India to a place outside India". The consignment in question was brought to the Port. Shipping Bills for export of the same were also filed. It fails to impress us as to how, under these circumstances, it cannot be termed as "export goods". It was further argued that on the date of seizure, the vessel had already sailed without the consignment. The consignors were trying to retrieve the goods containing partly TV sets and mostly hay and bricks. Merely because at some subsequent point, the appellants, for some ulterior motive, refrained from exporting the goods, cannot protect them from the applicability of Section 113(i), when they had already done whatever was required to be done for this export. There is a clear evidence available on record to show that they did enter the goods for export through that vessel and arranged that vessel to go away only because they apprehended detection of the fraud which was being practised by them. Having already taken all steps for the purpose of exporting the goods by duly complying with the formalities laid down under Section 50 of the Act, their plea that the goods were not "the export goods" cannot be accepted. The seizure made subsequent to the sailing of the vessel without cargo also does not alter the position. Under the guise of these, they cannot get out of the mischief of Section 113(i) of the Customs Act. It was a fait accomplie as soon as the shipping bills were filed and tools were brought in the customs area.
24. The argument was also advanced that the appellants could have amended the shipping bills by taking recourse to Section 149 of the Customs Act. The fact remains that they have not amended the shipping bills at any time prior to the search and seizure. The argument that they could have taken recourse to Section 149 cannot absolve them of any liability which had already accrued. Even the amendment is permissible only subject to the discretion of the Customs and is not a matter of right.
25. The point that then remains to be considered is whether the appellants are liable to personal penalty. There is a clear involvement of both the appellants as disclosed in the statements of Muchandi. Mr. Muchandi in his statements gives all the minutest details as to the conspiracy hatched by them to defraud the Government and recover huge amount therefrom. It is argued that the statements of Mr. Muchandi cannot be taken into consideration inasmuch as the same have been retracted. The retraction however is only much after the statements were recorded. There is absolutely no reason shown as to why he did not retract his statement at any earlier stage. On the contrary, even subsequent to the alleged retraction Mr. Muchandi has given a statement before the authorities retracting his letter of retraction and adhering to what he has stated before the authorities. The statement is completely inculpatory so far as Muchandi is concerned. In the statement, Mr. Muchandi has also involved Mr. Walhekar. A plea is raised that Mr. Muchandi, being a co-accused, his statement cannot be accepted unless the same is corroborated in all material particulars. Here besides the statements of Muchandi, there is an evidence on record in the nature of signatures of the appellant Mr. Walhekar himself on all the shipping bills as also in the nature of the statements of Mr. P.K. Kamat and others who clearly speak of the role played by Mr. Walhekar. There is no contradiction in the statement of Muchandi and other witnesses. Hence there is no hesitation in holding that what Muchandi has stated regarding Walhekar, has been duly corroborated practically on all material particulars by the others as also the Shipping Bills themselves and that leaves no iota of doubt in our mind that Walhekar was also involved and had actively participated in hatching the conspiracy as also in implementing the same.
26. A plea was raised referring to Section 140 of the Customs Act, that the consignor being the private limited concerned, notice ought to have been served on the company and that the Directors cannot be punished for the act of the company. It is admitted that show cause notice is not issued on the said company. When however the individuals have been identified and the role played by them have been ascertained, it may not be considered essential that the show cause notices ought to have been served on the company. Non-issuance of show cause notices on the company therefore does not vitiate the proceedings and in any case cannot absolve these appellants from the personal liability when their active role here is clearly established.
27. It was also pleaded that in any case 250 TV sets were available as per the S/Bs entered and hence they are not liable for confiscation. We find from the detailed list of seizure panchanama (Annexure A) that these 250 TV sets are not against one consignment covered by a particular shipping bill. It is found that in each consignment covered by a shipping bill, cartons packed with the hay and bricks were intermingled and hence they did not correspond to the entry made. Hence, relief requested for is not even legally tenable apart from any consideration of equity, which is positively against the appellants in a case like this.
28. Under the circumstances, we hold that the order of absolute confiscation of all the consignments is legal and valid. So far as the personal penalties are concerned, we are convinced that Mr. Walhekar was the mastermind behind the whole thing, where Mr. Muchandi, knowingly and willingly associated and assisted. If they had succeeded, they would have duped the Government to the tune of more than Rs. 14.00 lacs. We, therefore, feel that the penalties are not on the higher side in comparison to what has been done by the appellants. On the contrary, we feel that the adjudicating authority has remained just and fair in imposing the personal penalties.
29. Under the circumstances, we find no merits in the appeals filed and reject the same.