2015 (6) TMI 907 - AT - Customs

Penalty u/s 114 - Aiding and abetting - Held that - The exchange of e-mail messages between Shri Selvam and Shri Bhaskar Naidu clearly indicates their earlier transaction and business dealings even before the present consignment. This clearly establishes that Shri Bhaskar Naidu, CEO of M/s. Archana Exports and the overseas buyer knew each other very well. Both carefully hatched a fraud creating a web of intermediaries to smuggle prohibited Red Sanders under the garb of Granite Cobble Stones. He himself being the main conspirator tried to mislead the Department by way of engaging a number of intermediaries and by furnishing the wrong and fictitious telephone numbers and addresses, so that investigations are lost in the trail. In such facts the exporter was held liable for aiding and abetting. Further, in the case of P. Bhaskar Naidu, the payment for goods was received in cash, wherein in the case of present appellant the payment is received through Banking Channel. Further in the Bhaskar Naidu s case, the goods were factory stuffed and it moved from the factory to the Port, whereas in the appellant s case the goods have been taken to ICD premises for inspection. - allegation of aiding and abetting does not stand. - Decided in favour of assessee.

Summary

Issues:
- Appeal against penalty under Section 114(i) of the Customs Act
- Allegation of attempting to smuggle prohibited goods
- Role and responsibility of exporter in transportation from ICD to gateway Port
- Interpretation of Circular No. 57/98-Cus regarding accountability and responsibility
- Comparison with previous rulings on aiding and abetting in smuggling cases
- Differentiation based on payment method and goods movement process

Analysis:
1. Penalty under Section 114(i) of the Customs Act:
The appellant, a manufacturer-exporter, contested the penalty imposed under Section 114(i) of the Customs Act amounting to Rs. 30 lakhs. The penalty was based on the allegation that the exporter attempted to smuggle prohibited goods (Red Sanders) disguised as corrugated boxes for export.

2. Role of Exporter in Transportation:
The appellant argued that once the goods are inspected, stuffed, and the container sealed at the ICD, the exporter's role ends, and they have no responsibility in the transportation of the sealed container from ICD to the gateway port. This assertion was supported by Circular No. 57/98-Cus, which delineates the responsibilities of exporters and custodians in the movement of goods.

3. Interpretation of Circular No. 57/98-Cus:
The Circular specifies that the accountability for goods moving from ICD rests with the custodian, who is responsible for shortages during transit and required to pay duty amounts in case of discrepancies. It also outlines the process of examination, sealing, and transportation of goods from ICD to Ports or Airports, emphasizing the role of custodians in ensuring secure transport.

4. Comparison with Previous Rulings:
The appellant's counsel distinguished the current case from previous rulings on aiding and abetting in smuggling cases, citing differences in payment methods, goods movement processes, and the level of involvement in fraudulent activities. Notably, the appellant received payment through the banking channel, unlike the cash transactions in the previous case.

5. Differentiation Based on Payment Method and Goods Movement Process:
Further arguments highlighted the appellant's status as a first-time exporter who had received advance payment for the consignment, challenging the allegation of aiding and abetting in smuggling activities. A detailed comparison was drawn between the modus operandi in the present case and the intricate web of intermediaries involved in the previous case to emphasize the lack of similarity in the situations.

In conclusion, the judgment analyzed the appellant's appeal against the penalty under Section 114(i) of the Customs Act in the context of the alleged smuggling attempt, the exporter's role in transportation, the interpretation of relevant circulars, comparisons with previous rulings on aiding and abetting, and distinctions based on payment methods and goods movement processes. The detailed arguments presented by the appellant's counsel aimed to establish the lack of culpability in aiding and abetting activities, considering the specific circumstances of the case and the procedural responsibilities outlined in the Circular.