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TMI Blog2009 (10) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... d with and on opening the container, Red Sander logs were found. Statements of Sankaran, Balaji, employees of the CHA, M/s. Prakash Freight Movers Ltd. (PFML, for short) who filed relevant shipping bills were recorded. Statement of Thiagarajan @ Ravichandran, brother of Balaji was also recorded. On 19-7-06, the DIU received information from the steamer agent that they had received back their container GESU2894114 in trailer No. TN28 C 2872; the vehicle was searched by the officers and one registration number plate bearing No. TMV 1459, sticker sheet with numbers for pasting as container number, paint brush, paint container and driving licence issued to one K. Sadhasivam, were recovered from the container. User details of mobile number 99412 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TN 28C 2872 was Nagappan who had allowed it for transporting the containers used for smuggling of red sanders. 2. On the above basis, a show-cause notice was issued proposing confiscation of the red sander wood logs consignment and proposing confiscation of the container GFSU 2894114 and trailer No.TN 28C 2872 and proposing imposition of penalty on the proprietor of SFI, Sankaran and Balaji, employees of PFML, Ravichandran @ Thiagarajan, Bai @ Ganesh and Shri Nagappan. Notice was adjudicated by the Commissioner who ordered absolute confiscation of the consignment of red sander wood logs and the container and trailer, and imposed penalties of Rs. 50,000/- on Pankaj Bengani, proprietor of SFI, Jaipur for having facilitated misuse of his IE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner is that the entire conspiracy to smuggle out red sander wood logs which is a prohibited item was hatched and master minded by Bai @ Ganesh in collusion with Nagappan, owner of Trailer TN 28C 2872; that they selected M/s. SFI, Jaipur and used their name and IE code to cover their illegal activities with the connivance of M/s. PFML (CHA); that the name and IE code of SFI was misused; that one Shankar Kumar procured the natural slate stones from Nellore and made arrangements for substituting the same with red sander wood logs. The finding against PFML (para-61) is that they facilitated customs clearance by using the name and IE code of M/s. SFI, Jaipur without their knowledge for camouflaging the smuggling of prohibited ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport and misuse of CHA licence is not borne out by any evidence on record. Therefore, for the above reasons, namely, absence of proposal in the notice for penal action and absence of any material on record against PFML, I set aside the penalty imposed upon them. The prayer in the department s appeal against PFML for remand of the case for the purpose of imposition of penalty has no merit, since show-cause notice itself did not propose any penalty on them. Appeal No. C/92/08 filed by PFML is, accordingly, allowed and Revenue s Appeal No. C/190/08 is dismissed. 7. Penalty on Shri Sankaran is also required to be set aside in the absence of any finding that he abetted illegal export. He has clearly stated that the documents were filed and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engani, have reported that shipping bill in question was not filed by SFI. The Commissioner himself has recorded a finding in Para-59 of the adjudication order that the name and IE code of M/s. SFI were misused. Therefore, the imposition of penalty on the ground that SFI facilitated misuse of IE code is not tenable in the absence of any evidence to establish such facilitation by Bengani. The fact that Bengani took no action against Bai who is alleged to have misused IE code is not sufficient by itself to hold that Bengani was actively involved in abetting the illegal export. It is not the case of the department that he was aware of the misuse when the alleged attempt to export red sander logs took place and that he still remained silent wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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