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TMI Blog2012 (7) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... customs authorities based on intelligence that Red Sander logs , prohibited for export under the Foreign Trade Policy, were being smuggled out of India. The Customs officers of the Docks Intelligence Unit (DIU) identified a 20 container TEXU 2338038, which was entered for export under Shipping Bill No. 2124658 dated 06.08.2005 filed in the name of M/s. Archana Exports. Investigations revealed that Smt. Vidyavathi Naidu is the Proprietrix of M/s. Archana Exports. However, in her statement dated 14.09.05, she stated that though she is the proprietrix of her company, she is not conversant with the production, marketing and sale of the goods manufactured by her company and that she has entrusted all the said work to her husband Shri P. Bhaskar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.08.05 Shri Saravanan contacted Shri Bhaskar Naidu asking to expedite the clearance. The fax message dated 08.07.05 of Shri Selvam received at 07.20 PM seized at M/s. Archana Exports, Kuppam reads I am out of the country for a few more days. This gives a clear message that Shri Selvam and Shri Bhaskar Naidu had ongoing regular business deals. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has been in the business of export of granite cobble stones for several years and it cannot be alleged that the appellant smuggled red sanders in the guise of granite stones. He prays for waiver of penalty imposed on the appellant stating that the appellant has been cheated by the other three persons named above. 5. Shri T.H. Rao, Ld. SDR, appearing for the department supports the impugned order and states that in this case a larger quantity of red sander logs numbering 377 pieces, totally weighing 13320 kgs. were attempted to be illegally exported contravening the Foreign Trade Policy. The value of the goods was over Rs. 23 lakhs in the local market and over Rs. 53 lakhs in the international market. He states that the shipmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) of the Customs Act, 1962. The proposal in the show cause notice was also to penalize him under the very same Section. Section 114(i) reads as under:- (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty (not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act), whichever is the greater; (ii) .. (iii) 8. The details of the case as narrated in the show cause notice have been taken into account by the adjudicating Commissioner as recorded in the adjudication order. The prohibition in respect of export of red sander logs under the Foreign Trade Policy provisions and the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is actually sought to be exported is also prohibited, as in this case. 9. Mens rea is not required to be established in respect of mis-declared cargo is well settled also by a decision of the Hon ble jurisdictional High Court of Madras in the case of CC (Export), Chennai-1 Vs. Bansal Industries 2007 (207) ELT 346 (Mad.). 10. Apart from the above legal position, the facts of this case also do not absolve the appellant in any way. There are several incongruencies in his version that he was cheated by the representative of the Malaysian buyer. As a long time exporter, he is expected to be well aware of fulfilling his legal obligations and ensuring that correct declaration is made regarding the cargo, he is seeking to export ..... X X X X Extracts X X X X X X X X Extracts X X X X
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