ORDER
S.L. Peeran, Member (J)
1. This appeal arises out of the order-in-original, dated 4-11-1986 passed by the Collector of Customs, Kochi. By this order the Collector has ordered confiscation of the impugned goods which were found to be illegally from Bombay to South Africa on behalf of various exporters on board Ships belonging to M/s. Gold Star Lines, Hongkong. However, he has allowed redemption to the goods to the exporter, i.e. value realised in auction on payment of fine of Rs. 20,000/- and also imposed a penalty of Rs. 20,000/- under Section 114 of the Customs Act, 1962.
2. The facts of the case are that the appellants had misdeclared that the goods were being exported to Maputo in Mozambique. The information received by the DRI Unit Bombay indicated that the goods had been so exported to South Africa on board the vessel “Emrald Star” under the agency of M/s. Arebee Shipping Co. in May 1985. Therefore, it was alleged that the two ships under the agency of Arebee Shipping Co., being utilised regularly for making such clandestine exports. Further information was gathered on search of the Shipping Co. on 27-6-1985 resulting in the seizure of various incriminating documents viz. files, telexes and correspondence and punchanama. The business premises of the appellants were searched on 3-7-1985 and export documents such as bill of lading, miscellaneous correspondence diaries and registers were also recovered. Statement of Taro B. Vazirani, Director of Shipping Co. Ltd., Bombay, Rajan T. Jhangiani, Marketing Manager of M/s. Arebee Shipping Co. Pvt. Ltd., Bombay and Narayanan Mukind Bhat, Supervisor, Vinsons Stevedores, Bombay Shri Sawant Round Boss (Dock Officer) Vinsons Stevedores, Bombay, Shri Bharat Vibhakar Parekh, Cargo Supdt., Vinsons Stevenores, Bombay, Shri Surendra Jaduram Mehta alias Manubhai, partner of the firm of the appellants Shri Nayank Surendra Mehta of the appellants were recorded. From the documents and the statements it was found that the Shipping Company on M/s. Arebee Shipping Co. Pvt. Ltd. on behalf of various exporters were carrying cargo from Bombay to South Africa misdeclaring the destination as Maputo in violation of the prohibition of exports to South Africa in terms of Notification No. 135/64-Cus., dated 3rd October, 1964 issued under Section 11 of the Customs Act, 1962. In the show cause notice, details of the statements of other persons and documents relied upon by the department were disclosed by which it was inferred that the appellants diverted the goods to South Africa by making false declaration and false records. The partner of the appellants Shri Jaduram Mehta alias Manubhai stated that the appellants export betelnuts, spices and aluminium utensils and due to his old age, he has not been actively engaged in the company work; that his son Mayank S. Mehta solely looks after their imports and exports business and that he is only signing the documents as his son was not authorised to sign the documents. Detailed statement was recorded from Mayank Surendra Mehta. He stated inter alia in his statement that exports were made to Singapore, Maputo, Mauritius and their Singapore office receives export order from different countries including South Africa and they pass on the order to Bombay Branch, and they arrange for export as per orders received from their Singapore office. He further stated that though the goods are shipped and documented at Bombay, in the name of Maputo Port, all their shipments made to Maputo Port had been directly consigned to South African ports; that their contact M/s. M.H. Ismail Pvt. Ltd. is basically stationed at Durban and collects orders from parties in South Africa and sends them to their Singapore office under their indent showing the office there at Maputo; that they were also in contact with M/s. M.H. Ismail Pvt. Ltd. on telephone and by telegraph and that the goods so exported were supported by 80% payment through London confirming house and 20% from Singapore; that London confirming house was M/s. Mc. Donald Scales and that their only business contact at Durban is M/s. M.H. Ismail Pvt. Ltd. He was also shown the documents seized from his premises by the investigating officers with regard to the exports made to South African port which he admitted. Though the documents showed the exports to Maputo, the export was made to South African Port. Therefore, based on this allegation, it was alleged that the goods valued at Rs. 1,50,100 was seized at Cochin port for having been attempted to export to South Africa in violation of the prohibition imposed under Notification No. 135/64-Cus., dated 3-10-1964. Before the Collector the Counsel for the appellants took the point that prior to the issue of the show cause notice, the party was not treated as owner of the goods and accordingly it appeared that the department could not take any action whereas subsequent to the issue of show cause notice, the party is treated as owner of the goods. The learned Counsel also pointed out that the authorities pointed out this contradictory stand. Further, the Counsel also pointed out that there was no conspiracy among various persons in regard to the export of the goods. He had pointed out that there has to be reasonable link between attempt, preparation and actual execution. The Collector on consideration of the pleas of the Counsel for the appellants rejected all the pleas and relied upon the incriminating documents and the statement of the partner of the appellants Mayank Surendra Mehta who had explained the manner in which the dummy address was used to procure orders and mode of payment through confirming houses at London, Singapore etc. the Collector has also noted that the party did not take any stand in the main issue and there was no defence on the main issue. He also distinguished some of the judgments cited by them and on that basis held that the party had clear intention to use the dummy address at Maputo to carry on trade with South Africa. He also referred to the admission of the partner of the appellants and the other admissions.
3. We have heard Shri Rajagopalan, learned Counsel for the appellants and V. Thyagaraj, the learned SDR for the Revenue.
4. The learned Counsel submitted that the department has not proved that the seized goods were being exported to South Africa. The goods were attempted to be exported to Maputo, East Africa and there is no nexus between steamer shipper and the agent. The goods were sold by the department without any notice being given to the appellants. There is no legal evidence and the sole admission is not sufficient to uphold the charge.
5. The learned SDR pointed out that all the statements were inculpatory in nature and the case has been proved beyond any shadow of doubt. The appellants had used dummy address and they themselves admitted about routing the items to Durban, South Africa. There is no retraction of the statements and the Collector has rightly upheld the charge. He pointed out that the goods were perishable in nature and were required to be auctioned and the same had been done in accordance with law and the said sale of the goods has no connection with the proceedings; they are independent in nature.
6. On careful consideration of the submissions made, we notice that the appellants themselves have admitted the manner in which the goods were being sent to South Africa by showing wrong address at Maputo. The evidence collected by the department is documentary as well as by admission and the statements have not been resiled nor better evidence produced by the appellants to counter the charge made out by the department. Therefore, the Collector has rightly upheld the charge that the appellants deliberately attempted to export the goods to a prohibited nation by misdeclaring the same to be meant to Maputo, East Africa while in fact the goods were routed to Durban, South Africa. The transport was being done through London and Singapore office through their agent M.H. Ismail Pvt. Ltd. based at Durban. These details were culled out from the documents seized from the appellants’ office and also based on the admissions made by the appellants themselves. Therefore, we do not find any reason to reject the department’s allegation. The only plea raised by the learned Counsel is there was no nexus between the shipper and the agent. This point has been dealt with by the Collector and he has discussed the evidence. Another plea raised was that the goods have been disposed of without notice to the appellants. The aspect pertaining to perishable item is governed by the different provisions and the sale and deposit of the amount has no bearing on the charge made out in the show cause notice. The sale of the perishable item does not vitiate the proceedings as the sale of the goods is governed by different provisions of the Customs Act. The learned Counsel has not produced any citation or any rule or any reference to any judgment which prohibits auction of perishable goods which have already deteriorated. Therefore, we do not find any merit in the submission of the learned Counsel in this regard. We also notice that the appellants have been allowed option of redemption of the value of the goods realised in auction on payment of redemption fine. In this view of the matter, no case has been made out for further reduction of redemption fine. The penalty imposed is not excessive in the facts and circumstances of the case. The appeal is accordingly rejected.