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TMI Blog2014 (12) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... esponsible for the attempt to illegally export by way of mis-declaration, contrary to prohibition in law is further evident from the statement of L.Subash Proprietor of Sharmi Exim Co., whose statement is to the effect that he consented to the said improper export only for the purpose of individual gain of ₹ 5,000/- per container. The complicity of the appellant further gets confirmed by the statement of the Custom House Agent, who stated that the false/bogus invoice of R.B. Trades were handed over to him by the appellant and that he proceeded to file the shipping bills on the instructions of the appellant. - In view of the clear and categorical evidence available on record, there appears to be no error in the order passed by the Tribunal confirming the findings of the original authority as well as the Commissioner (Appeals) on levy of penalty under Section 114 (i) of the Customs Act. Involvement of the appellant in the attempted export by way of mis-declaration contrary to prohibition imposed by law - Held that:- all the authorities have considered the material evidences available on record, including the statements and have given a clear finding that the appellant was ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 23.7.2009 (IE Code No.0404008470) for export of 'Industrial Salt Chemical Grade (Sodium Chloride)'. The details of the said shipping bill are set out as hereunder :- Declared RTC Code 25010090 Declared DESCRIPTIONINDUSTRIAL SALT CHEMICAL GRADE (SODIUM CHLORIDE) Declared QUANTITY 110 MTS TOTAL PACKAGES 2200 Declared INVOICE VALUE Rs.8,98,535/- Declared FOB VALUE Rs.8,27,421/- CONSIGNEE Aston International, 5657, West Wood Lane, The Collany, Texas 75056, UNITED STATES PORT OF DISCHARGE PASIR GUDANG CHA BHOLU KUMAR PARMAR 5. On information, the Docks Intelligence Unit (DIU), Custom House, detained the said goods on the reasonable belief that the exporter has misdeclared the goods in the consignment and attempted to export the same contrary to the restrictions imposed by law. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign Trade (Development and Regulation) Act, 1992. The Original Authority also held that Subash Proprietor of Sharmi Exim Co. and Kishore Nagaarur Managing Director, Sri Chemicals are liable for penalty under Sections 114 (i) and 114AA of the Customs Act and, accordingly, passed the following order :- (i) I order the confiscation of the 110 MTS of MOP declared as 'industrial salt' with FOB value of ₹ 8,27,421/- sought to be exported by Shri L.Subash through his firm Sharmi Exim Co., under shipping bill No.3440204 dated 23.07.2009 under Section 113 (d), (h) and (i) of Customs Act, 1962, read with Section 3 (3) of the Foreign Trade (Development and Regulation) Act, 1992. However, I give an option to redeem the same on a redemption fine of ₹ 10,00,000/- (Rupees Ten Lakhs only). (ii) I impose a personal penalty of ₹ 2,00,000/- (Rupees Two Lakhs only) on Shri L.Subash, Proprietor of Sharmi Exim Co., under Section 114 (i) of Customs Act, 1962. (iii) I impose a personal penalty of ₹ 2,00,000/- (Rupees Two Lakhs only) on Shri Kishore Nagaarur, Proprietor of Sri Chemicals, Chennai, under Section 114 (i) of Customs Act, 1962. (iv) I impose a pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of persons deserve no leniency. In view of the discussion above, I find no merit in the appeal and the appeal is dismissed. 9. Aggrieved by the said order of the Commissioner (Appeals), the appellant herein pursued the matter before the Tribunal. The Tribunal allowed the appeal in part upholding that the penalty levied under Section 114 (i) is justified, but, however, set aside the penalty under Section 114AA of the Customs Act. Against the said order of the Tribunal, the present appeal has been filed. 10. Learned counsel appearing for the appellant contends that there is a contradiction in the finding of the Tribunal, more particularly, in para-5 of the order, where there is a clear finding that Sharmi Exim Co., signed and used the cheque for export of the goods and even then penalty under Section 114-AA was dropped. Since the abovesaid finding is in favour of the appellant and against Sharmi Exim Co., there is no justification for confirming the penalty against the appellant under Section 114 (i) of the Customs Act and, therefore, the order passed by the Tribunal, confirming penalty, is liable to be set aside. 11. Heard Mr.Satish Sundar, learned counsel appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 108 of the Customs Act on 26.08.2009 clearly stated that he raised six bills, totaling to 110 MTS on instructions from the appellant Kishore Nagaarur and raised the bills in the name of Sharmi Exim Co., for monetary consideration. It is also the further statement of Babu of R.B. Trades that he handed over the six invoices to the office of Sri Chemicals owned by the appellant. The statement of S.Babu is corroborated by the statements of Senthilnathan and Bholu Kumar Parmar, CHA. The further statement of Senthilnathan, working for the CHA would reveal that he collected the invoices and packages from the appellant's office for the purpose of export. The statement of the persons who were involved in the transaction as above have implicated the appellant and his complicity in the attempt to illegally export goods by way of mis-declaration. The further investigation by the department also shows that Rajagopal, father of the appellant, in his statement recorded on 5.9.09 has stated that the consignee address, Aston International, 5657, West Wood Lane, The Collany, Texas 75056, United States, as shown in the shipping bill is the address of Smt.Aruna Murugesh, daughter of N.Rajagopal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to the conclusion that the appellant is the real brain behind the transaction, who masterminded the export and L.Subash Proprietor of M/s.Sharmi Exim Co. is only a de jure exporter. The so-called supplier of the goods, R.B. Trades is also de jure supplier and both of them have colluded with the present appellant in his attempt to illegally export Muriate of Potash under the guise of 'Industrial Salt'. 17. The appellate authority, taking note of the relationship of the appellant with the consignee, viz., Aston International, United States, which is the address of the sister of the appellant and the payments received therefrom, supported by the statement of Rajagopal, the father of the appellant, was of the clear view that the appellant was the man behind the scene inciting others to commit illegal acts by dangling before them inducements of money or business prospects and, therefore, the appellant deserves to be penalised. The original authority as well as the appellate authority were of the clear view that the appellant had, in relation to the goods, committed acts, which would render such goods liable for confiscation under Section 113 of the Customs Act knowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- per container. The complicity of the appellant further gets confirmed by the statement of the Custom House Agent, who stated that the false/bogus invoice of R.B. Trades were handed over to him by the appellant and that he proceeded to file the shipping bills on the instructions of the appellant. 20. In view of the clear and categorical evidence available on record, there appears to be no error in the order passed by the Tribunal confirming the findings of the original authority as well as the Commissioner (Appeals) on levy of penalty under Section 114 (i) of the Customs Act. 21. The further issue that requires consideration in the present appeal is the involvement of the appellant in the attempted export by way of mis-declaration contrary to prohibition imposed by law. 22. Section 114-AA of the Customs Act deals with penalty for use of false and incorrect materials in the process of export. Though an argument is advanced by the learned counsel for the appellant that since the Tribunal has set aside the penalty imposed under Section 114-AA of the Customs Act, the proof with regard to the complicity of the appellant in the alleged improper export is doubtful and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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