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TMI Blog2011 (8) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... or Appellant No. 2) (Represented by: Mr. A.K. Prabhakar, JDR for Respondent Per: P.R. Chandrasekharan 1. There are two appeals, one filed by Mr. Vijay Sonu Golatkar, Director of M/s Air & Sea Forwarding Private Ltd, Mumbai and another filed by Mr. Sanjay Surve, an employee of M/s Tejesh Logistics Pvt Ltd, which are taken for consideration together, as both the appeals are directed against Order-in-Original No. 54/2003/CAC/CC/SK dated 04.08.2003 passed by the Commissioner of Customs (Export Promotion), Mumbai. 2. Briefly stated the facts of the case are as follows: 2.1 M/s Laxmi Steel Forgings Ltd, Jalandhar, filed two DEPB Shipping Bills vide Shipping Bill Nos 5226802 and 5226803 both dated 24.09.2002 for the export of an aggregate q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to one Mr. Nitesh who was not a person authorized for customs clearance. The adjudicating authority found that he had played a role of a facilitator and a link between M/s Laxmi Steel Forgings, the exporter, on the one hand, and the CHA and Mr. Nitesh, on the other, in a conspiracy to defraud the Government by attempting to secure clearance for exports on DEPB Shipping Bills misdeclaring the quantity. The adjudicating authority imposed a penalty of Rs 50,000/- on Mr. Sanjay Surve under Section 114 (i) of the Customs Act, 1962. 2.3 The appellants are in appeal against the imposition of penalties under the impugned order. 3. Mr. Vijay Sonu Golatkar was represented by his advocate Mr. G.B. Yadav, while none appeared for Mr. Sanjay Surve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed against him and therefore, no penalty is imposable on him under Section 114 (i) of the Customs Act, 1962. 7. The learned JDR, on the other hand, reiterates the findings of the adjudicating authority and submits that Mr. Vijay Sonu Golatkar, as a Director of the CHA firm, had not obtained authorization for exports from the exporter and he left blank forms duly signed which were used by his employees in the commission of the alleged export. Thus, he did not exercise active control on the action of his employees, thereby, leading to commission of the offence and therefore, he is liable to penalty under Section 114 of the Customs Act. As regards Mr. Sanjay Surve, he was not authorized by the Customs to receive any documents from the export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot acquire authorization from the exporter for undertaking the export which is clearly in violation of the duties entrusted upon the CHA. Further he signed blank forms of the various documents relating to exports and left them in the office, which were utilized by his employees in facilitating the export. Thus, his conduct constituted both omission and commission, omission in relation to not acquiring authorization for export and commission in relation to signing blank forms which could be misutilised by its employees. It is on record and it is not in dispute that the goods which were handed over to the CHA were packed in packages which were not uniform in size, even though each package was supposed to contain a uniform quantity of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter, or to hand over the documents to another person who was not a clearing agent appointed by the Customs. When a person who is not authorized undertakes a transaction, it is clear that the mens rea is present. In the instant case, the transaction related to fraudulent exports claiming undue DEPB benefits. Merely because he has not signed any document, it does not mean that he has not abetted in the commission of an offence. Mr. Sanjay Surve, who was not authorized by anyone, had no business whatsoever to undertake the transaction, either on behalf of the exporter, or on behalf of his firm. Therefore, his action amounts to abetment in the commission of an offence. Therefore, the adjudicating authority has correctly levied penalty on M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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