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(Judgement of this Court was made by T.RAVINDRAN, J.) Challenge in this civil miscellaneous appeal is made to the Final Order No. 141/2012, dated 16.02.2012, passed by the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Chennai, rejecting the appeal preferred by the appellant, challenging the Order in Original No.6636/07, dated 31.08.07, passed by the Commissioner of Customs (Export-seaport), Chennai and imposing the penalty on the appellant to Rupees six lakhs for the acts committed by him, (for his role in the attempted export of Red Sander Wood Logs), as provided under Section 114 of the Customs Act, 1962.

4. The authorities concerned, after examining the other persons involved in the matter and recording their voluntary statements as provided under law and further noting that the fax number and the address of Saravanan as furnished by the appellant did reveal that they did not pertain to Saravanan and relate to others and accordingly, concluded that red sander wood logs numbering 377 pieces totally weighing 13320 kgs and valued at Rs.23,31,000/- (LMV) and Rs.53,28,000/- (IMV) were attempted to be exported out of India by mis-declaring as 20 Mts of granite cobble stone vide shipping bill number 2124658, dated 03.08.2005, in the name of M/s. Archana Exports by replacing the contents enroute from Kuppam to Chennai by Selvam, Saravanan, Krishnan with the active connivance of the driver of the trailer and accordingly, initiated proceedings against the appellant and the others and issued the show cause notices and in the show cause notice issued inter alia it was mentioned that Selvam, Saravanan, Krishnan were involved in the attempted illegal export of prohibited goods i.e., red sander wood logs out of the country as detailed above, therefore, they are liable for penalty under section 114 of the Customs Act, 1962 and the appellant i.e., the exporter, Chief Executive Officer of M/s. Archana Exporters in whose company's name illegal export was attempted to be done is also liable to penalty under section 114 of the Customs Act, 1962 and thereby called upon the appellant and others involved in the matter to show cause to the Commissioner of the Customs, Export  (Seaport), Chennai, within 30 days from the date of receipt of notice.

7. The civil miscellaneous appeal preferred by the appellant has been admitted on the following substantial questions of law:

1. Whether the appellant can be visited with penalty under section 114 of the Customs Act, 1962, on the stated cause (in the show cause notice) that the illegal export was attempted in the name of M/s. Archana Exports of which the appellant was the CEO?

2. When investigation did not result in finding any involvement of the appellant and consequently the show cause notice itself was limited to an averment that the illegal export was attempted in the name of M/s. Archana Exports of which the appellant was the CEO, was it open to the respondents to invent new grounds when passing order in adjudication and appeal?

10. After considering the rival contentions putforth by the respective counsel, it is noted that as per Section 114 of the Customs Act, 1962, that any person who, in relation to any goods, does not 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 to a penalty as detailed therein. It is found that the intelligence had been gathered by the authorities concerned that by mis-declaration, the prohibited goods are being attempted to be exported through Chennai to Malayasia and accordingly, the authorities concerned, on the interception of the container involved in the matter, found that they contained the prohibited goods i.e., red sander woods logs instead of the declared goods and thereby, it is found that the Section 113(i) of the Customs Act, 1962 come into operation and in such view of the matter, it is found that the appellant, being the chief executive officer of the company, who had arranged the export and enroute, the prohibited goods are found to be loaded in the place of the declared cargo and attempted to be exported abroad by way of mis-declaration and when it is further noted that the appellant is unable to give the correct particulars of the middle men, who had approached and interacted within as regards the export in question, it is seen that as rightly determined by the authorities concerned, the appellant cannot be declared to be an innocent person, particularly when it is noted that he had acted with the middle men without verifying their credentials etc., more particularly, the credentials of the buyer concerned and when it is noted that the appellant is unable to furnish any correct information as regards the various middle men who had approached and intermediated with him as regards the subject concerned, it is clearly found that the appellant is also in collusion and complicity and acted hand in glove with the middle men for arranging the smuggling of the prohibited goods to Malaysia by mis-declaration. When it is noted by the authorities concerned that the container involved and arranged by the middlemen, on examination, the rivets of the handles on the right side door of the container appeared to be tampered with and changed with new ones and though the seal was found to be intact, it is found that the middle men, who had operated with the appellant in the export concerned, in connivance with the appellant, had during the transit, destuffed the declared cargo and re-stuffed, with the prohibited goods, so as to ensure that the prohibited goods are taken abroad without proper scrutiny. In such view of the matter, the appellant being the exporter should have taken all the safeguards in relation to the goods through whom the same are being exported and if he does any act or omits to do any act which would render such act or omission resulting in the goods liable to confiscated as provided under section113 and even abets the doing or omission of such acts, would be liable to penalty as per Section 114 of the Customs Act, 1962. Under the above provisions of law, it is seen that as rightly determined by the authorities concerned, the question of mens rea is not at all relevant for being liable to confiscation and penalty and in such view of the matter, considering the voluntary statements given by the appellant to the authorities concerned, which are admissible in evidence as per law, when it is found that the appellant had suspicious and clandestine dealings with the middle men vis-a-vis, the subject export and even during the interrogation unable to furnish any correct particulars as regards the middle men, who had interacted with him with reference to the subject export and on the other hand, the so called information furnished by him, being found to be not genuine, it is seen that the appellant, right from the inception, is instrumental in arranging for the restuffing of the prohibited goods in the place of the declared goods and in such view of the matter, the appellant cannot plead ignorance that inasmuch as the persons noted in the show cause notice, enroute, had changed the goods concerned, he could not be fastened with any liability. As rightly putforth by the standing counsel appearing for the customs department, the appellant being the chief executive officer of the export company should take all the precautionary steps to ensure that the goods are transmitted from the factory to Chennai harbour safely and when the appellant is found to have allowed the middlemen to intermeddle with the cargo and later, not furnished any correct information as regards the middle men who had intermeddled with the goods and when it is seen that the appellant is found to have received some amount in cash, though some remittance had been made in bank from Malaysia, however, on an analysis of the materials placed on record coupled with the provisions of law, as above stated, it is found that the appellant has wittingly made himself liable for the penal action under the provisions of the Customs Act, 1962, for failing to ensure the proper and safe transit of the goods to the destination, which resulted in the intermeddling of the goods by the third parties and accordingly, the appellant having rendered himself liable for the seizure of the confiscated materials during the search, as rightly determined by the second respondent as well as the first respondent tribunal, it is found that the appellant is liable to penal action under Section 114 of the Customs Act, 1962.