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2008 (2) TMI 709 - AT - CustomsPenalty on Customs House Agent - Attempt to export prohibited commodity - Held that - There is no evidence on record to indicate that, by obtaining the CHA s signature for the purpose of filing the subject Shipping Bill for export of granite chips, Shri Chinnikrishnan was doing something which rendered the red sanders liable to confiscation. As a matter of fact, it was Shri Indirakumar who, admittedly, was in-charge of transportation of the goods from the CFS to the container terminal. The Revenue has not established that Shri Chinnikrishnan was aware of the intentions of Shri Indirakumar. No mens rea has been found on the part of Shri Chinnikrishnan in relation to the swapping of materials in the containers. Consequently, there can be no penalty under Section 114 of the Act on Shri Chinnikrishnan either - appeal allowed.
Issues:
Penalties imposed under Section 114(i) of the Customs Act on M/s. Swaroop Shipping Services and Shri S. Chinnikrishnan in connection with the absolute confiscation of red sanders logs under Section 113(d) of the Act. Analysis: Issue 1: Penalties and Confiscation The case involved penalties imposed on the appellants under Section 114(i) of the Customs Act in connection with the absolute confiscation of red sanders logs under Section 113(d) of the Act. The penalties were challenged in the appeal. The Commissioner of Customs had ordered the confiscation of the red sanders logs and imposed penalties on the appellants and another individual, Shri Indirakumar, for abetment of smuggling. However, the department failed to trace Shri Indirakumar. The appellants contested the notice, leading to adjudication by the Commissioner. Issue 2: Abetment Allegation The key issue was whether the appellants, a Customs House Agent (CHA), and Shri Chinnikrishnan, had any involvement in the smuggling activity of replacing declared goods with red sanders logs in the containers during transit. The Shipping Bill declared the goods as "Natural Granite Chips" for export to Malaysia. The swapping of goods occurred between the Customs Freight Station (CFS) and the container terminal. The role of the CHA and Shri Chinnikrishnan in this clandestine activity was under scrutiny. Issue 3: Role of Customs House Agent The CHA's role was debated, with the argument that their responsibility ended upon issuance of the "let-export" order at the CFS. However, it was contended that the exporter's function extended until shipment, implicating the CHA as well. The CHA's involvement was limited to signing blank formats for a fee without knowledge of the smuggling activity. The absence of mens rea on the CHA's part regarding the confiscated goods led to the conclusion that the penalties imposed under Section 114 of the Act could not be sustained. Issue 4: Involvement of Shri Chinnikrishnan Similarly, Shri Chinnikrishnan's role was analyzed, and it was found that there was no evidence to suggest his awareness or participation in the smuggling scheme orchestrated by Shri Indirakumar. The lack of mens rea on Shri Chinnikrishnan's part regarding the swapped materials in the containers resulted in the decision that no penalty under Section 114 of the Act could be imposed on him. Conclusion The appellate tribunal set aside the impugned order against the appellants, M/s. Swaroop Shipping Services and Shri S. Chinnikrishnan, allowing their appeals. The judgment highlighted the importance of establishing mens rea and direct involvement in illegal activities to impose penalties under the Customs Act. This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the tribunal's decision regarding the penalties and confiscation in the case.
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