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TMI Blog2013 (6) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... aph provides that stuffing of container shall be done in presence of Customs house officer and other representative. If the Customs House Officer was not present and the stuffing was carried out, then it was wrong committed on part of the respondent as no stuffing could be permitted in view of paragraph 10.2 in absence of Customs Officer. Instead of fixing the responsibility on the Customs Officer, the Tribunal has shifted the liability on the clearing house agent, when a specific case of the clearing house agent was that he or his representative were not present at the time of stuffing. No mens rea can be attributed to the appellant nor the appellant could be said to have abetted in exporting of prohibited rice - Penalty levied by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Fleet Station (For short "CFS"), Mundra. Thereafter, the respective formalities were carried out by CFS staff. On 6.3.2009, the Customs Officers of Mundra (MP SEZ) who were on preventive round found that five containers were stuffed with Non-Basmati rice in bags marked as Indian Basmati Rice. Since the export of Non-Basmati is prohibited by DGFT by notification No.93(RE207)/2004/09 dated 1.4.208, therefore, 135 MT of Non-Basmati rice found in five containers valued at Rs. 71,87,400/- were placed under seizure on 6.3.2009 and given in safe custody. The statement of the partner of the appellant and proprietor of the exporter Shri Ankur Jindal and other persons were recorded under section 108 of the Customs Act, 1962 (For short "Customs Act) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce discussed by the Commissioner so as to implicate the CHA. As such, by extending the benefit of doubt to him, we set aside the penalty of Rs. 5 lakhs imposed on M/s. Anchor Logistic." 5. The seizure was made on the same day in the matter of Krishna Agro Overseas as well as J.G.Agro Food and both the goods were identical. The defence and explanation of the appellant in both the cases was identical. But in one case, the Tribunal has granted benefit whereas in the instant case, the Tribunal has affirmed the penalty. 6. We have gone through the orders passed by the Commissioner and the Tribunal. The exporter J.G.Foods in their statement have stated that under a mistake, Non-Basmati rice was packed by the labour and the same was packed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know that the goods packed in the bags were Non-Basmati rice. No mens rea can be attributed to the appellant nor the appellant could be said to have abetted in exporting of prohibited rice. Further, on the same day, on 6.3.2009, the rice involved in this case as well as the rice sought to be exported by Krishna Agro Overseas were confiscated for exporting prohibited rice. In case of Krishna Agro Overseas, the Tribunal has recorded a finding in favour of the appellant and has held that the CHA had no knowledge about the goods. There was no reason why the same observation could not be relied by the appellant in support of his contention in the instant case that he had no knowledge that prohibited rice was being exported by the exporter. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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