2017 (8) TMI 1204 - AT - Customs

Imposition of penalty - section 114 of CA - correctness of imposition/non-imposition of penalty - Smuggling - export of Red Sanders - penalty on Shri Ravinder Kumar Gupta, noticee no. 1 - Held that - the noticee no. 1, Shri Ravinder Kumar Gupta, is not a culprit. He did all the formalities which were required under the law for the export of the Insulators. Hence, the lower authorities has rightly not imposed penalty on him - penalty rightly not levied. Penalty on Shri A.T. Maideen, noticee no. 2 - Held that - it appears that he is neither the exporter of the goods nor in any manner connected with the present export consignment. He was an accused in a different case and that too was retracted by him at the earliest available opportunity. His statement was recorded on 27.11.2011 before the DRI Officers where he had disclosed his old business of Red Sanders Wood. Be that as it may. But the fact remains that he is neither the exporter nor any beneficiary. Hence, the lower authority has rightly not imposed any penalty on him - penalty rightly not levied. Penalty on Shri Sanath Kumar, noticee no. 3 - Held that - it appears that Shri A.T. Maideen has given his (Shri Sanath Kumar) number to his old business friend. As per the direction of Shri Sanath Kumar, in the past, he used to supply the Red Sanders at the given place. But the fact remains that, Shri Sanath Kumar, who was actively involved in the smuggling of Red Sanders was not involved in the instant case. He too is neither exporter nor active conspirator in the instant case, so the lower authority has rightly not imposed penalty on him - penalty rightly not levied. Penalty on Shri Suresh Kumar, noticee no. 4 - Held that - it appears that he was a middleman/agent of the foreign buyer of Red Sanders, who had contacted Shri Ravinder Kumar Gupta, Proprietor of M/s RR Industries - When Shri Ravinder Kumar Gupta asked for the advance payment on phone, then Shri Suresh Kumar agreed for it and entire payment was made through letter of credit (L/C). Shri Suresh Kumar is not traceable. The address given by Shri Suresh Kumar was found fake. When Shri Suresh Kumar is not traceable, then the lower authority has rightly kept the imposition of penalty in abeyance against Shri Suresh Kumar as the same cannot be recovered until he is traced - penalty rightly not imposed. Penalty on Shri Chander Pal Pathak, noticee no. 5 - Shri Anil Supervisor of M/s Atul Cargo, noticee no. 6 - Shri Babloo, Driver, noticee no. 7 - Shri Munni Yadav @ Kamlesh, Driver, noticee no. 8 - Held that - it appears that they were involved in the transportation of the containers. Shri Chander Pal Pathak, is the owner of both the trailers which were used for the transportation of the containers from factory to ICD, Tuglakabad, New Delhi - Penalty of ₹ 10,000/- each on Shri Anil Supervisor of M/s Atul Cargo, noticee no. 6; Shri Babloo, Driver, noticee no. 7; and Shri Munni Yadav @ Kamlesh, Driver, noticee no. 8, was rightly imposed by the lower authority for the acts of omission and commission on their part for carrying out the illegal export of the Red Sanders - penalty rightly imposed. Impugned order upheld in toto - appeal dismissed - decided against Revenue.

Issues Involved:
1. Imposition of penalties on various individuals involved in the alleged smuggling of contraband goods.
2. Liability of the exporter, Shri Ravinder Kumar Gupta.
3. Involvement and penalty on Shri A.T. Maideen.
4. Involvement and penalty on Shri Sanath Kumar.
5. Imposition of penalty on Shri Suresh Kumar.
6. Penalties on individuals involved in the transportation of the containers.

Detailed Analysis:

1. Imposition of Penalties on Various Individuals:
The Department's grievance was that the adjudicating authority did not impose penalties in a proper manner on the Respondents. The adjudicating authority had imposed penalties on some individuals while exempting others, which led to the Department filing appeals.

2. Liability of the Exporter, Shri Ravinder Kumar Gupta:
Shri Ravinder Kumar Gupta, the proprietor of M/s R.R. Industries, was initially arrested but later released on bail. His statement revealed that he had followed all legal formalities for the export of Insulators. The containers were tampered with during transit, and he was not found to be involved in the smuggling of Red Sanders Wood. The Tribunal upheld the lower authority's decision to not impose any penalty on him, stating that he was not a culprit and had complied with all legal requirements.

3. Involvement and Penalty on Shri A.T. Maideen:
Shri A.T. Maideen was not connected with the present export consignment and was an accused in a different case. His statement, which was retracted, revealed his past involvement in the illegal export of Red Sanders Wood. The Tribunal agreed with the lower authority's decision to not impose any penalty on him, as he was neither the exporter nor a beneficiary in the current case.

4. Involvement and Penalty on Shri Sanath Kumar:
Shri Sanath Kumar was mentioned in Shri A.T. Maideen's statement as someone who had previously directed the supply of Red Sanders. However, he was not involved in the current case. The Tribunal upheld the lower authority's decision to not impose any penalty on him, as he was neither an exporter nor an active conspirator in the current case.

5. Imposition of Penalty on Shri Suresh Kumar:
Shri Suresh Kumar was a middleman/agent of the foreign buyer of Red Sanders. His statement was not recorded, and he was not traceable. The Tribunal upheld the lower authority's decision to keep the imposition of penalty in abeyance against him, as the penalty could not be recovered until he was traced.

6. Penalties on Individuals Involved in the Transportation of the Containers:
The Tribunal reviewed the penalties imposed on Shri Chander Pal Pathak (owner of the trailers), Shri Anil (Supervisor), and the drivers (Shri Babloo and Shri Munni Yadav). They were involved in the transportation and subsequent tampering of the containers. The Tribunal found that the lower authority had rightly imposed penalties on them for their roles in the illegal export of Red Sanders. The penalties imposed were deemed reasonable and were upheld.

Conclusion:
The Tribunal upheld the impugned order in its entirety, finding the penalties imposed by the lower authority to be justified and reasonable. All appeals filed by the Revenue were dismissed.

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