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TMI Blog2016 (10) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... o monitor the movement of the container till it is exported. It is not coming out of the case records as to what the appellants omitted to do which lead to this abetment to the offence. That there is no evidence on record to indicate that the appellants had knowledge of the contraband being sent in the container. Some negligence in not monitoring the export consignment can only be attributed on the part of the appellants. But the same will not make the appellant a party to attempt to export of contraband goods. The decision in the case of Air India-vs.- Commr.of Customs, Mumbai [2000 (5) TMI 858 - CEGAT, MUMBAI] relied upon where it was held that negligence alone is not enough for imposition of penalty. Imposition of penalties not jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neys after verification and inspection of goods by Central Excise Superintendent and the shipping company put its one time bottle seal on container. In the ARE-1 Annexure, bottle seal of the shipping company bearing No.OOLBPB0363 was duly mentioned. After the container left the appellant s premises the appellant received an intimation by e-mail from Mr. Sanjay Singh that the order was placed for 1,000 boxes and since the quantum exported is lesser, the Custom House Agent should be instructed to withhold the container. The appellant instructed the Custom House Agent to act on the instruction of Mr. Sanjay Singh. 3. On 19.09.2012 the container was intercepted and the seal of the container was found to be broken. Red sanders logs of about 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge that any contraband or Red Sanders Woods were found in transit before export. Ld. Advocate relied upon the following case laws in support of his argument that no penalty is imposable. (i) A.K.Saha-vs.-Commr.of Customs (P), Calcutta[2001(136) E.L.T.303(Tri.-Kolkata). (ii) Dhakad Metal Corporation-vs.-Commr.of C.Ex. S.T., Daman[2015(330) E.L.T. 561(Tri.-Ahmd.)] (iii) Air India-vs.-Commr. Of Customs, Mumbai[2001(137) E.L.T. 802 (Tri.-Mumbai)] (iv) Alex Perez G-vs.-Commr. Of Customs(Prev.), Mumbai[1999(105) E.L.T. 701 (Tribunal)] (v) Kiran S.Dixit-vs.-Commr. Of Customs, Hyderabad[2014(301) E.L.T.337(Tri.-Bang.)] (vi) Air Freight Ltd.-vs.-Commr. Of Customs (Airport), Mumbai[2004(172) E.L.T.229(Tri.-Mumbai)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amage or delay in delivery of consignment lies with the multimodal transport operator as defined in Section 2(m) of this Act. 7. There is also nothing in the Customs Act, 1962, that the exporter is required to monitor the movement of the container till it is exported. It is not coming out of the case records as to what the appellants omitted to do which lead to this abetment to the offence. It is observed from the findings of the Adjudicating Authority in paragraph-26 of OIO dated 23.02.2015 that the same are based on presumptions, assumptions and surmises. That there is no evidence on record to indicate that the appellants had knowledge of the contraband being sent in the container. Some negligence in not monitoring the export consignme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had actually assisted in loading red sanders or tampering the container or they were even aware that red sanders had been filled into the container somewhere on the way until the container was recalled and examination was conducted. Under these circumstances, in this case, apparently penalty has been imposed on the appellant on the ground that he has abetted in stuffing and attempted export of red sanders in the container. Abetment means a positive act on the part of the appellant and as can be seen from the facts and circumstances, there is no evidence forthcoming to show that the appellant had given any assistance in the attempted export of red sanders. In my opinion, negligence on the part of the appellant has not been proved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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