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TMI Blog2015 (11) TMI 1502X X X X Extracts X X X X X X X X Extracts X X X X ..... med the concerned authority in writing. Further, the respondents have co-operated in investigation against the said kingpins who have attempted export of prohibited goods. Accordingly, I uphold the impugned order passed by the learned Commissioner (Appeals). - Decided against Revenue. - Appeal No. C/89377/14 - Final Order No. A/1030/2015-WZB/SMB - Dated:- 6-5-2015 - Shri Anil Choudhary, Member (Judicial) For the Petitioner : Shri M.S. Reddy, Dy. Commissioner (AR) For the Respondent : Shri S.N. Kantawala, Advocate ORDER Per: Shri Anil Choudhary The Revenue is in appeal being aggrieved with the Order-in-Appeal No. 2641 2642(ADJN.-EXP)/2014(JNCH)/EXP-132 133 dated 26.6.2014 passed by the Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration of prohibited goods which were attempted to be exported and thus was held liable for penal action under Section 114(i) of the Customs Act. The export cargo (non-basmati rice and Dal Husk) were held liable for confiscation under Section 113(d) and 113(i) of the Customs Act. A penalty of ₹ 10 lakhs was imposed on respondent No. 1, the Director of the CHA firm, Mr. Sohel Firoz Kazani and a penalty of ₹ 5 lakhs under Section 114(i) was imposed on the employee of the CHA firm, Mr. R.T. Gadge. 2.1 Being aggrieved, the respondents herein preferred appeal before the Commissioner (Appeals). The learned Commissioner (Appeals) have observed that in normal course of duty, the Shed Officer had detected on 25.8.2010, the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nivance with Shri Gurbani for export of rice, which was prohibited. The allegation on the respondent is that they had knowingly aided and abetted the export of the prohibited goods. The scrutiny of the records proved to contrary of the findings in the Order-in-Original. It was further found by the learned Commissioner (Appeals) that findings in the Order-in-Original for imposing penalty are based on assumption and presumption. The Commissioner (Appeals) has further observed that during investigation of the case a report from the Customs Officer Shri Sonawane was called for. In the said report dated 8.9.2010 it was informed that, on 25.8.2010 at about 7.00 p.m. representative of the CHA came to me with the checklist and invoices for concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibited goods rice, he would have tried to convince the examining officer of the Customs to examine the cargo without de-stuffing, which is not the fact obtained as per the report of Customs officer Mr. Sonavane. Accordingly, the learned Commissioner (Appeals), in the facts and circumstances found that CHA has no role except to present the document and check-list. Further, the CHA has not done anything to avoid the procedure to be followed at the time of carting in of goods and/or examination of the goods by the Customs officer. It was categorically held that it cannot be said that the respondents were having prior knowledge of the actual goods contained in the container at the time of carting in. Further, on very first opportunity on getti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carted also confirms the role of the CHA in the matter. Goods were carted without tallying the marks and nos of the packages. It was seen that the employee of the CHA approached Customs officer for examination on 25.08.2010 and there was an attempt to get the goods cleared without bringing the goods out of the container. If the officer can notice the presence of the prohibited goods inside the container before destufiing in shed at night time, Shri Ramdas Gadage could also notice it before carting of goods and brought it to the notice of the officer before proceeding for examination. 3.2 The appellant involved himself knowingly in abetting the export of the prohibited goods and thus making the goods liable to confiscation under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeal) was not applicable in the instant case as the appellant had knowingly indulged in the fraudulent export of the impugned goods. 3.10 It is established principle of law that fraud and justice do not dwell together. An appellant acting in defiance of law has no right to claim innocence when he fails to exercise due care and diligence. Enactments like Customs Act 1962, and Customs Tariff Act 1975, are not merely taxing statues but are also potent instruments in the hands of the Government to safeguard interest of the economy. Exposing entire modus operandi through allegations made in the show cause notice on the basis of evidence gathered by Revenue against the respondents was sufficient opportunity granted for rebuttal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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