2022 (3) TMI 1228 - AT - Customs

Levy of penalty u/s 114(i) of the Customs Act, 1962 - Smuggling - export of prohibited goods - Star Tortoises - levy of penalty for the reason that the appellant had not verified as to whether Let Export Order was issued or not - HELD THAT - From the facts narrated, it is clear that the attempt to export the prohibited goods (Star Tortoises) had come to light on the information given by the appellant that there was a pungent smell coming from the cargo. It is very much clear that it is the appellant who had taken the first step to note that there was something fishy in regard to the cargo that was attempted to be exported. If the appellant was colluding / intentionally facilitating import of the said prohibited goods, he would not have intimated the higher officials - In such circumstances, it cannot be held that the appellant has facilitated the attempt to export the prohibited goods in question. The Adjudicating Authority has imposed the penalty holding that the appellant has not been diligent in obtaining all documents and had not verified as to whether Let Export Order was issued. This cannot be the reason to hold that the appellant has abetted the attempt to export the prohibited goods. The reason for imposing the impugned penalty is that the appellant has not verified the Let Export Order before the goods reached the loading area. As it is established that it is the appellant who had frustrated the attempt to smuggle the prohibited goods, the penalty imposed under Section 114(i) of the Customs Act, 1962 cannot sustain and requires to be set aside - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Penalty imposed under Section 114(i) of the Customs Act, 1962 on the appellant for facilitating the attempt to export prohibited goods (Star Tortoises).

Analysis:

Issue 1: Penalty Imposed Under Section 114(i) of the Customs Act, 1962
The case involved the penalty imposed on the appellant under Section 114(i) of the Customs Act, 1962 for allegedly facilitating the attempt to export prohibited goods. The appellant, a Cargo Supervisor, had noted a pungent smell from the cargo and informed the airline officials, leading to the cargo being shut out. The Adjudicating Authority imposed the penalty based on the appellant's failure to verify the Let Export Order before the goods reached the loading area. However, the appellant argued that there was no evidence linking them to the attempt to export prohibited goods and that the penalty was unjustified. The appellant's actions in reporting the suspicious cargo and preventing its export indicated a lack of intent to facilitate smuggling. The Tribunal found that the penalty imposed was not sustainable as the appellant had actually thwarted the attempt to smuggle the prohibited goods. Therefore, the penalty under Section 114(i) of the Customs Act, 1962 was set aside.

Conclusion:
The Tribunal set aside the penalty imposed on the appellant under Section 114(i) of the Customs Act, 1962, as the appellant's actions indicated no intent to facilitate the export of prohibited goods. The appeal was allowed, and consequential reliefs were granted as per law.