ORDER
S. Kalyanam, Member (J)
1. The appeals arising out of the common order of the Additional Collector of Customs, Tiruchirapalli, dated 31-12-1985 imposing a penalty of Rs. 1,000/- and Rs. 25.000/- respectively on appellant Kannan and M/s. Rajathi Agencies under Section 114 of the Customs Act, 1962 (the ‘Act’ for short) relate to the same transaction and are, therefore, disposed of by a single order.
2. On 18-5-1983, on the basis of prior information, at about 5.00 P.M. the D.R.I. officers of Madras and the Superintendent of Central Excise, Customs Division, Cuddalore, searched the premises in the occupation of appellant M/s. Rajathi Agencies at Cuddalore and recovered a total quantity of 23,375 Nos. of tanned snake skins valued at Rs. 5,84,375/-. The snake skins (hereinafter referred to as the “goods”) were kept concealed under empty gunny bundles. Therefore, the authorities on a reasonable belief that they were meant for illegal export, effected seizure of the same under a mahazar as per law. The authorities also recorded statements from Kannan and Ors. such as Palani, the godown keeper, P. Chandrasekaran, a clerk of Rajathi Agencies and Ors., wherein they stated that the goods were kept for illegal export. It is in these circumstances, after further investigations, the proceedings instituted against the appellants eventually resulted in the impugned order.
3. Shri Sahasranamam, the learned Counsel for the appellants, submitted that the impugned order is bad in law since the penal provision has not been specifically referred to. It was further urged that the case of attempted illegal export and concealment of the goods has not been established by the evidence on record. It was further urged that the mahazar witnesses have admitted in cross-examination on 5-2-1985 that they did not witness the seizure of the goods in question from the premises of appellant M/s. Rajathi Agencies and, therefore, the adjudicating authority should have held that the recovery of the goods from the premises or possession of Rajathi Agencies has not been established. The learned Counsel also contended that even assuming for the purpose of argument that the goods were recovered from the premises of Rajathi Agenices there is no evidence to impute knowledge to the appellants about the presence of the goods and mere recovery of the same would not impute knowledge or conscious possession to the appellants. It was urged that the inculpatory statement recorded from appellant Kannan was retracted by him at the time when he gave a reply to the Show Cause Notice on 10-12-1983 and, therefore, the original statement, confessional in nature, has no evidenciary value. The learned Counsel also submitted that the term ‘export’ or ‘attempted export’ would indicate actual attempt being made when goods are in the process of being exported and mere recovery of goods in stationary condition would not come within the mischief and ambit of the expression of either ‘export’ or ‘attempted’ export to be liable for confiscation in terms of Section 113(d). It was further urged that the very seizure by the Customs authorities of the goods is without jurisdiction inasmuch as the goods were not in the Customs area in terms of Section 111(d).
4. The learned Senior D.R. contended that the inculpatory statement of Kannan and Ors. such as Palani, Chandrasekaran, is admissible in law and belated retraction is not entitled to any credence. The learned Senior D.R. further urged that even if the mahazar witnesses turned hostile, the recovery of the goods from the possession of appellant Rajathi Agencies is clearly established by the evidence of the seizing officer. The learned Senior D.R. further urged that export of the goods in question is prohibited in law and storing of the same in the vicinity of a port, admission of the various aforesaid persons of the proposed plan to export the same illegally in contravention of law and attendant circumstances would clearly establish the charges against the appellant.
5. I have carefully considered the submissions made before me. _ The primary question that would fall for consideration is whether the goods in question were actually recovered from the premises and possession of M/s. Rajathi Agencies. To a specific question in this regard the learned Counsel fairly admitted that the goods were indeed recovered from the premises and possession of M/s. Rajathi Agencies. I also find that a similar admission by the counsel has been adverted to in para 28 of the impugned order. Therefore, the only other question that remains for consideration is whether the appellant M/s. Rajathi Agencies knew about the presence of snake skins kept concealed in gunny bundles, so as to falling them with knowledge and conscious possession of the goods. It is not disputed before me that M/s. Rajathi Agencies receive goods either for temporary custody or for storage prior to export and is an organisation having branches at Nagapattinam and Madras, besides Cuddalore office. The statement of appellant Kannan clearly shows that a muslim came from Madras and handed over a railway parcel receipt saying that Shri Murugesan of M/s. Rajathi Agencies, Madras, sent him and asked him to take delivery of the parcels and accordingly one Sambandam, who is working as an office boy, took delivery of the same and kept it alongwith 7 other bundles which had come earlier. Kannan has further stated that the said muslim requested for concealment of the bundles since they contained tanned snake skins and, therefore, the goods were concealed with the help of Palani and some other persons with empty gunny bags belonging to M/s. Rajathi Agencies. This statement of Kannan has also been corroborated by the statement of Palani dated 15-5-1983 and by P. Chandrasekaran another employee of Rajathi Agencies, by statement dated 18-5-1983. Appellant Kannan admittedly did not retract the statement till he gave a reply to the Show Cause Notice on 10-12-1983 and no explanation has been given for such belated retraction after a period of about 7 months. I have gone through the statements of the said persons and I find them voluntary and true and reject the belated retraction as an after thought. The statements referred to above clearly establish that the goods were received with the knowledge that they were eventually intended for illegal export and precisely for this reason the goods were also kept concealed. The evidence on record clearly shows that the goods were to be shipped through M.B. Viceroy, the ship which was expected to touch Cuddalore the next day. The plea of the counsel that penal provision is not mentioned and, therefore, the impugned order is bad in law is not tenable. The entire facts and necessary ingredients relating to the commission of an offence regarding attempted illegal export have been clearly set out in the show cause notice and the appellants also have participated in the adjudication without any demur. The submission of the learned Counsel that there is no contravention under Section 111(d) or (e) is neither tenable in law nor sustainable on facts of this case. The various circumstances referred to above would bear ample testimony to the case of the Department that the goods were brought and kept concealed in the godown of Rajathi Agencies for an eventual illegal export. Likewise, the plea of the learned Counsel that inasmuch as the mahazar witnesses turned hostile the adjudicating authority should have rejected the case of recovery and possession of the goods from Rajathi Agencies is without substance. The learned. counsel himself has admitted the recovery from the premises of M/s. Rajathi Agencies and I have also set out the circumstance imputing knowledge of the same to M/s. Rajathi Agencies. I do not find any substance in the plea of the learned Counsel that the Customs authorities have no jurisdiction to effect seizure of the goods and take further proceedings under the Customs Act, 1962. The facts and circumstances of the case are squarely covered by Section 113(d) and (p) of the Customs Act, 1962 and consequently the appellants are liable for penalty under Section 114 of the Act. The penalty on appellant Kannan is only Rs. 1,000/- and his complicity has been clearly established and the penalty on M/s. Rajathi Agencies is only Rs. 25,000/- and the goods viz. snake skins which were illegally attempted to be exported in contravention of law is valued at Rs. 5,84,375/- and, therefore, no interference in regard to the same is called for. In the result the impugned order is affirmed and the appeals are dismissed.