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TMI Blog2014 (3) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... enging the penalties upheld by Commissioner (Appeal) and the Revenue has appealed for increasing the penalties imposed by the Commissioner (Appeals). Therefore, all these appeals are being considered together. 2. The facts involved in these cases are as follows. Shipping Bill No. 1955099 dated 09.07.08 was filed in the name of M/s. Kumari Coir Products, 1/1, Sree Ramapuram, Anna Nagar, Panagudy, Tirunelveli District, for export of cargo declared to be Coco Peat to M/s. Selangor Fertilizer, SDN, BHD, Kualalumpur, Malaysia. Shri. S. Chandrasekhar was the proprietor of M/s. Kumari Coir Products. Directorate of Revenue Intelligence received information about smuggling of red sanders wood, an item prohibited for export from India, in the said consignment. By the time they could locate the consignment, the container had already sailed to Malaysia on 14.07.2008. The subject container was immediately recalled and the container arrived at Tuticorin Port on 10.08.2008. In the meantime, Malaysian Customs had opened the subject container and on examination, it was found that the container was fully stuffed with red sanders wood. Malaysian Customs sent back the container to Tuticorin after p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o more consignments of Coco Peat were exported by Shri George using the name and IE Code of Kumari Coir Products. He also admitted that the activities of transportation of the containers to Tuticorin and clearance of the goods for export by engaging a CHA were taken care of by Shri George only. There was a proposal in the show cause notice for imposition of penalty under Section 114 of the Customs Act and under Section 117 of the Customs Act, 1962, on Shri S. Chandrasekaran. 5. The next appellant is Shri Rama Theena Thayalan, Proprietor of M/s. Vector Freight Forwarders, Tuticorin, the CHA, whose name was used for filing the concerned shipping bill. Shri Rama Theena Thayal, had a standing arrangement of giving blank signed Annexure-A forms to be filed for export of goods to Shri. G. Ravi and he had taken Rs. 1,00,000/- as deposit from G. Ravi for this and had also got profit share of 70,000/- from Shri. Ravi. He stated that he had no knowledge of the shipping bills filed by G. Ravi for export of goods of M/s Kumari Coir Products. Shri Rama Theena Thayal, failed to exercise due diligence as prescribed in the Customs House Agents Licensing Regulations, 2004, and thus resulted in exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had acted in a bonafide manner by completing the formalities of filing shipping Bill and other related work for export of cargo. He had no knowledge about any prohibited cargo in the consignment. So penalty imposed on him is not justified. It was also argued that penal proceedings if any can be only under CHALR, 2004 for revocation of license which has been separately taken. It was argued that no penalty under section 114 of Customs Act is maintainable. 9. Arguing for the appellant Shri G. Ravi, the Ld. Counsel submits that he has been punished on the basis of the statement by Shri George, who was a co-accused. He further submits that the Revenue has not proved any role played by G .Ravi and he was acting in a bonafide manner while filing shipping bill as an employee of a CHA. It is submitted that without proving knowledge on the part of Shri. Ravi about the concealment of export cargo he cannot be held to be an abettor and penalty imposed on him. In this matter he relies on the decision of 1975 SC 175 in the case of Sri Ram Vs. State of Uttar Pradesh. 10. Opposing the submissions of the three persons Ld. A.R. for Revenue submits that Shri. Chandrasekharan allowed Shri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor Freight Forwarders, even while running his business in the name of M/s Deepak Logistics. Considering the value of goods the penalty imposed by adjudicating authority was reasonable and the same should be restored. 13. I have considered submissions on both sides. The argument that section 113 will apply to only goods attempted to be exported and will not apply to this case because the attempt was successful is a very illogical argument. A successful export takes place only after attempt to export and if the goods were liable to confiscation for attempt to export it can be confiscated even after successful attempt so long as the goods could be brought back which has happened in this case. At any rate the attempt was not fully successful because the goods were brought back. 14. In this case, the role of Shri Chandrasekharan is culpable. He has allowed his name and IE code to export goods by persons whose antecedents were not known to him. He was doing it for consideration. This resulted in export of prohibited item by Shri. George. Acting as a proxy for non-traceable persons and allowing the laws of the country to be flouted is not a matter to be encouraged. An argument that IE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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