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TMI Blog2018 (3) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... t Forwarders and M/s Raghuvir Singh & Sons are allowed. Appeal allowed in part. - Appeal No. C/53, 69, 134/2009-SM - Final Order No. A/ 10439-10441 /2018 - Dated:- 12-3-2018 - Dr. D. M. Misra, Member ( Judicial ) For the Appellant : Mr. Derrick G. and Hardik Modh (Advocates) For the Respondent : Mr. A. Mishra ( A. R. ) ORDER Per : Dr. D.M. Misra: These three appeals are filed against Order-in-Original No. KDL/COMMR/50/2008 passed by Commissioner of Customs, Kandla. 2. Briefly stated the facts of the case are that one Sh. Dev Kumar Kapta filed a shipping bill No. 1055178 on 10.07.2006 for export of goods declared as 6950 pieces of Roofing Tiles weighing 12.510 MT. These tiles were later brought to the container freight station of CWC-CFS on 11.07.2006. After examination of the goods, Let Export Order (LEO) was given by the Customs and then these goods were stuffed in a 20 Ft. container under the supervision of Customs Preventive Officer. The container was sealed with bottle seal by the said Customs Officer. Thereafter, the container was loaded on a truck No. GJ-12-W-8893 and moved from the CWC-CFS area towards Gateway Port MICT Mundra under transshipme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the Port at Jamadar Wadi. The statements of various persons were recorded in connection with the said replacements. None of them had implicated the appellant in the said offence. Further, he has submitted that the appellant has not done any act or omission rendering the goods liable to confiscation under Section 113 of the Customs Act, warranting penalty on them under Section 114 of the said Act. It is his contention that the appellant had also not abetted any offence as the main ingredient of the allegation of abetment is knowledge of the offence and also aiding to the offence which is also absent in the present case. There are number of judgments wherein the courts have held that penalty cannot be imposed under the Customs Act, 1962 when there is no positive role played by the CHA in the alleged offence. In support he has referred to the judgments in the case of Commissioner of Cus.(Exports), Chennai Vs. I. Sahaya Edin Prabhu 2015 (320) ELT 264 (Mad.), Swaroop Shipping Services Vs. C.C.(Exports)Chennai 2008 (227) ELT 555(Tri.-Chennai), D.H.Patakar Company Vs. Commissioner of Cus. (Imports), Mumbai 2008 (229) ELT 612 (Tri.-Mumbai) and Neptune Cargo Movers Pvt. Ltd. Vs. Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.Ashok Kumar vs C.C. 2010 (262) ELT 321 (T) * I.Sahaya Edin Prabhu vs C.C. 2008 (222) ELT 308 (T) * C.C. vs I. Sahaya Edin Prabhu 2015 (320) ELT 264 (Mad.) * Kavia Carbons Vs C. C. 2009 (213) ELT 547 (T) * Maruti Transporters vs C.C. 2004 (177) ELT 1051 (T) 5. Ld. AR for the Revenue reiterated the findings of the Ld. Commissioner. 6. Heard both the sides and perused the records. 7. It is established and not in dispute that there was an attempt to export 419 logs of Red Sander Woods weighing 11908.250 Kgs valued at ₹ 47,63,300/- seized by the Customs on 14.07.2006. The main offenders Sh. Pradeep Thakkar and Mahesh Bhanushali of M/s Simna Exports had been absconding since detection of the case. On adjudication of the notice issued, by the Ld. Commissioner, the seized Red Sander Woods, attempted to illegally export were absolutely confiscated and also the Roofing Tiles seized from the Jamadar Wadi, being replaced in the container with Red Sanders wood, was also confiscated. The present appellants have been penalized by the Ld. Commissioner under Section 114(i) of Customs Act, 1962 for their alleged role in aiding and abetting of attempt to illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evkumar Kapta knew that Shri Pradeep was indulging in some illicit activity. Other wise, if the entire transaction was bona fide, there was no reason for Shri Devkumar Kapta to give specific instructions to his staff not to make any enquiry about Shri Pradeep. It is evident from the above that Shri Devkumar Kapta, by performing a multi-dimensional role which went beyond that of normal working of a Custom House Agent in as much as he, apart from filing shipping bill, also arranged for empty container from Mundra to CWC-CFS, Gandhidham, got stuffing permission and also through his proprietorship concern M/s. Chirag Enterprise, undertook transportation of loaded container from CWC-CFS, Gandhidham to MICT, Mundra, provided a breeding ground for Shri Pradeep to perpetrate the offence of making an attempt to export prohibited goods out of India. Concomitant to non-disclosure of the identity, address and whereabouts of Shri Pradeep by Shri Devkumar Kapta, the extra-interest taken by Shri Devkumar Kapta in dealing with this consignment indicate that he was acting in league with Shri Pradeep in his attempt to smuggle Red sanders out of India. This is supported by the facts available on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been consistently held that for the act of negligence on the part of CHA, penalty cannot be imposed under 114(i) of Customs Act, 1962, as proceedings could be initiated under the CHALR, 2004. In the present case the acts of the CHA could at best be charged for violation of the CHALR,2004 but in absence of evidence of their complicity in the act of attempt to illegal export of Red Sanders wood, penalty u/s 114(i) cannot be sustained. 10. Regarding the penalty imposed on M/s Raghuvir Singh Sons, discussing their role, Ld. Commissioner observed that as per agreement with CWC-CFS they could directly engage the service of transporters and forwarders and in the present case they have allowed M/s Chirag Enterprises to undertake transportation at the behest of the Manager CWC-CFS Gandhidham. Proceeded further, he has observed that the appellant M/s Raghuvir Singh Sons certainly owe an explanation as to why they allowed M/s Chirag Enterprises to carry out the job for which only they were authorized at the material time by CWC-CFS Gandhidham. On several earlier occasions for which they had also received payment from CWC-CFS which they passed it on to M/s Chirag Enterprises after dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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