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TMI Blog2017 (3) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... horities about forgery and fabrication of documents accompanying the offending goods. He also did not inform about use of false seal used to seal the container. This proved his ulterior motive for personal gain perpetuating the offence of attempt to export red sander - A person acting on the advice of another runs in risk if he does not ascertain veracity of the advice. Doctrine of Caveat Emptor makes the appellant liable under law. Customs law expects a CHA to be trustful to Customs. Non-disclosure of material facts and conspiracy against Customs brings him to the fold of law in view of both oral and documentary evidence came up against appellant. Appellant's conscious knowledge and intimacy to the smuggling surfaced with echoed evidence. Conduct of the appellant showed his hand in glove with the smuggling racket to act to the detriment of Customs. Accordingly, appellant's plea of innocence fails. He deceived Customs. His deception caused peril to the interest of Revenue. Penalty upheld - appeal dismissed - decided against appellant. - C/41582/2013 - 42464/2016 - Dated:- 23-12-2016 - Shri D.N. Panda, Judicial Member For the Appellant Shri A.K. Jayaraj, Adv. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Customs Act, 1962 or any other law to bring him to the penal consequences; (2) that the CHA accepted the consignment on the basis of documents produced by Shri. T.Mariappan of M/s. Sea Angle Logistics , Tuticorin, the forwarder , Mariappan informed him that the consignment was stuffed and sealed by the Central Excise Officers at Palladamn Therefore he was not at fault; (3) that the forwarder gave invoice and annexure C-1, ARE-1 to the appellant mentioning the goods as a cotton grey sheeting exported by M/s. Shiva Texyarn Ltd., Coimbatore. He required the CHA appellant to submit the documents to the Customs for clearance. Accordingly the appellant in good faith believing that the consignment contained only cotton grey sheeting; presented the export documents to Customs and acted in good faith; (4) that the CHA did not see the goods which were meant for export but merely filed the documents given by the forwarder through its marketing staff. Accordingly no penalty is imposable on him; (5) that in the e-mail correspondence between Shri T. Mariappan and Shri- Rajesh Gupta there was no whisper about the involvement of the CHA in the offence committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aled his name as E.A.M. Ahamed Rabi and said that he was the cleaner of the said lorry. He further informed the officers that the driver of the said vehicle had just left the place. The officers searched for the driver for sometime but in vain. Then the Officers called operating Staff of M/s MSC Agencies (Liner for the above container) Stephen and opened the Container in his presence after his arrival and found to contain Reddish Wooden logs. Weighment made inside Port area and then sealed with Customs Seal. The cargo along with the vehicle document found inside the driver cabin was seized vide Mahazar (page 37 to 40 of file) 2-12-2011 Statement Recorded from Shri. E.A.M Ahamed, Cleaner of the Vehicle u/s 108 of CA, 1962, who claimed innocence on the attempted illicit export of Red Sanders (page 56 of file). He stated that he went to one Kannitheivam Automobile workshop in Madurai ring road for job and they deputed him and the mechanic introduced him to Kumerasan Driver of the vehicle who offered him the job of cleaner and he accepted and came with the vehicle as cleaner. (page 56 of file) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng heavy vehicle but without any workshop (fax copy of report received on 5-12-2011 in CH, Tuticorin Page 198 of the file) 11 2-12-2011 Based on the direction from AC, CH, Tuticorin, proceed to Madurai ring road and located the Kannitheivam workshop and enquired with one moorthy owner of the vehicle, who informed that one muslim man came and introduce himself as mechanic from illayangudi and informed that he could not attend the repair work in a lorry and request to sent one mechanic and their mechanic (raja ) attend the repair work of lorry and that two person came by Scropio vehicle while attending the repair work and left (report received on 5-12-2011 page 203 to 202) 12 2-12-2011 Statement was recorded by Superintendent, CPU, Coimbatore from Shri. S. Sankar, GM(Marketing), M/s. Shiva Tex Yarn, Coimbatore who stated that they have not made any export vide the above SB and that their unit comes under C.Ex Dvn II Coimbatore C.Ex C'rate (and not as mentioned in the Export document). Report received on 7-12-2011 (page 204 to 235) 2-12- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dam issue. The owner of the shop Shri. Moorthy informed the officers that he had sent two of his workers to carry out repair work of the lorry TN28AA 5031 at about 18.00 hrs on 30.11.2011 when the lorry was stranded somewhere near Varichiyoor (Madurai-Sivagangai Road). As the repair work could not be completed during the night, his workers returned leaving behind the lorry at the same place. Then the next clay, the lorry was somehow brought to Madurai by its driver. The repair work was attended to and completed at about 15.00 hrs. Then the officers visited M/s Murugan Plastics, 17, Town Hall Road, Madurai-625001, situated in front of Saraswathi Lodge, and made enquiries. Its owner Shri. Lengaram (mobile no.9042403953) informed the officers that he had indeed made the two nylon rubber stamps 'For SHIVA TEXYARN LIMITED .... MANAGER', SHIVA TEXYARN LIMITED, UNIT-PALLADAM HITECH WEAVING PARK, F.No.290/1, SUKKAM PALAYAM(V), K.N. PURAM, TIRUPUR' for a fee of s.270/- on 28.11.2011 as he was able to retrieve the sample images from his computer but could not recollect as to whom the said rubber stamps were made. The officers then visited the three toll plazas (i) Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bi at Illyangudi pudhur to serve summons and Rabi was not in house, summons was pasted in his house with two independent witnesses. Then visited the house of Kumerasan at Periyakannanoor, Sivagangai and his was locked. Summons pasted on this house with two independent witnesses (report received on 10-2-2012) (Page 319 to 323 of file) 23-02-2012 Lr addressed to AC. Customs Division, Cuddolore to depute officer to RTO North West Chennai to pursue the case 29-02-2012 Lr to AD, DRI, Chennai sending the role played by each persons in the seizure of Red sanders along with their Cellphone numbers for further investigation (page 336 337) 1-3-2012 Lr from Shiva Tex Yarn sending copy of FIR filed with Police department for misusing their company name for attempted export of Red Sanders (page 338 to 340) 29-03-2012 Lr from AC. Customs Division, Cuddalore forwarding the RTO's report on owner of the lorry, wherein it has been informed by RTO, North West, Chennai that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpted export with the racket of smugglers. (vi) The appellant Shri. R. Daniel Raj, filed export documents produced by the unauthorised forwarding agent M/s. Sea Angel Logistics, Tuticorin without verifying the veracity of documents and credibility of the exporter. 6.1 Revenue further submitted that the appellant was quite aware of the attempt to export red sanders in the 20 feet container No. MDU 1401485 transported by truck bearing false registration No. TN 28AA 5031 displaying the name Shiva Tex Yarn Pvt. Ltd , without any owner thereof on record of the office of RTO, Chennai nor registered thereat. 6.2 Investigation revealed that the stuffing seal on the goods and the container as well as documents accompanying goods were fabricated. Seal of Coimbatore IVE Range was made by the racket although no such Range was existing. The appellant as a CHA is expected to be aware of existence of the Range office. He should have thoroughly verified the documents when that contained seal of a non-existing Range. Appellant failed to enquire truth of the transaction when Mariappan of M/s. Sea Angel Logistics handed over him the exporting documents without the owner Shri R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing truck was carrying 9.89 MTS of red sanders of value of ₹ 49.45 lakhs in 20 feet container No. MADU 1401485 attempted to be exported in terms of Shipping Bill No. 6446455 date 29.11.2011. IE Code 39790266981 belonging to M/s. Shiva Tex Yarn was used by the smuggling racket to export the offending goods. Such misuse of IE code was confirmed by Shri Shankarraman, General Manager, of that concern in his statement dated 7.12.2011. There was no rebuttal to such fact by appellant. So also appellant failed to contradict the statement of the General Manager that neither the offending truck came to the factory of M/s. Shiva Tex Yarn nor any goods were loaded into that truck from the factory of that concern. M/s. Shiva Tex Yarn was not the exporter of the goods declared in the Shipping Bills. Red sander found from the container was attempted to be exported, falsely declaring that as 100% grey sheeting. 8.2 The red sander found from the container were loaded in Madurai in the offending truck and that belonged to one Rajesh Gupta who provided the container transported through a lorry to one Mariappan. Mariappan was proprietor of M/s. Sea Angel Logistics , an unauthor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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