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TMI Blog2015 (6) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... vessel MV Sima Sadaf, which sailed for Port Jebel Ali from Jawaharlal Nehru Port on 18.2.2010. The said container was called back and examined by the officers under panchanama on 4.3.2010. On investigation, the goods stuffed in the container was found to be red coloured wooden logs of different sizes. Shri Madhvanan A, Wild Life Inspector, Wild Life crimes Control Bureau was called upon for examination, who examined the said goods and expressed his expert opinion that they were Red Sanders wood logs of mixed quality of an international market value of around Rs. 800/- per kg. The net weight of the goods was found to be 9915 kg and as per the rate of 800 per kg amounted to Rs. 79,32,000/-. Red Sanders are prohibited goods under the Export Policy. Further, Red Sanders (Pterocarpus santalinus) was an endangered species and figures in Appendix II of the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES). The said consignment was seized vide panchanama dated 4.3.2010. Further investigation revealed that one more container was already exported under shipping bill filed under the IEC code of said Able Moulders to UAE. The details of the consignment be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the shipments did not belong to them, the consignee mentioned on the said shipping bills and invoices was not amount their customers and was not known to them and further, the rubber stamp appearing on the invoices was different than the one used by them. He also denied having business relation with M/s Organic Coating Ltd. or his partner. In the present exports, the container was qualified as IAL India Ltd. and J.A. Maritime. As regards the past export, the container was carried away through container service provider M/s Welgrow Line India Pvt. Ltd. 2.1 The CHA firm in the present export relating to 22 containers in question was Franc Cargo Clearing Services having its office at Andheri (E), Mumbai and M/s Ajay Overseas Shipping, CBD Belapur, Navi Mumbai. As regards the enquiry with container provider/container line/operating agent providing the container no. IALU 2250490 in respect of present export of Able Moulders, the container provider was IAL India Ltd. and J.A. Maritime. 2.2 As regards the container of the past export being container No. BAXU 2608585 where export in the name of Able Moulders, the container was provided by M/s Welgrow Line India Pvt. Ltd. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers for the purpose of export to exporters, CHA and other booking parties. Generally, they received orders for containers from freight forwarders/logistic providers and CHA. As Manager (Documentation), he was in charge of all activities related to providing the containers, preparation of the container loading list and submission of the same to the Vessel Agent, preparation of the export manifest relating to shipment of containers, preparation of MBL etc. pertaining to business at JN Port. The said container No. BAXU 2608585 and the agent seal pertaining to export of M/s Able Moulders was provided by their company to M/s Welgrow Line India Pvt. Ltd. They did not know M/s Able Moulders, the exporter or M/s Ajay Overseals Shipping, the CHA. Further, they were not the persons/firms who placed the order with them for providing the said container, they did not enquire about the exporter or the authorized CHA who would use the container for stuffing the goods. Their marketing and booking staff concerned in booking and providing the container acted in conformity with the company policy decided by Shri Farhad Dholoo, Managing Director of their company. 2.4 Accordingly, a show-cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in abeyance against Shri Ramesh, Shri Ganesh Poojari, Shri Vasant and other person/firm of company until they are apprehended since they are not traceable at this moment. 2.6 Further, as regards the present appellant the finding have been recorded in para 81 of the impugned order that the appellant failed to verify the credentials of their clients or even the existence of the firm intended by the client, conduct and criminal obligation on part of the appellant facilitated the actual exporter with the container of smuggling of the said goods and rendered the goods liable for confiscation under the provisions of the Customs Act. Accordingly, it appeared that the said act of providing the containers by the container owners to the actual exporters, persons who were neither the legal exporters no the CHA constitutes the abatement of the actual exporter, the smuggling of the prohibited goods thereby rendering the goods liable to confiscation under the provisions of Customs Act. Accordingly, it was held that present appellant alongwith other is also liable to penalty under Section 114(i) of the Customs Act and contravened the provisions of Section 146 read with regulation 3(a) of the CH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the High Court was whether the element of mens rea is required for imposition of penalty under the Customs Act. The Hon'ble High Court relying on the ruling of the Apex Court in the case of Chairman, SEBI vs. Shriram mutual Fund 2006 (5) SCC 361 answered the question in favour of the Revenue and against the assessee thereby holding that the mens rea is not required for imposition of punishment under the Customs Act. 5. Having heard the rival contentions and considering the facts on record, I find that the present appellant have issued the container in question for past export through another freight forwarder. I further find that the whole case of the Revenue is based on assumption and presumption as neither the main accused or the exporter/owners of the goods have been found and brought to adjudication and in the absence of examination of the main exporter and further in absence of the purported prohibited goods not found and or confiscated, I hold that no case is made out for imposition of penalty against the appellant. Accordingly, the impugned order with extent to imposition of penalty on the present appellant is set aside. Thus, the appeal is allowed. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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