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TMI Blog2018 (5) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... anders in another identical container on which the same container number and other markings had been got done. Penalty u/s 114 (i) of the Customs Act, 1962 - Held that: - while there is nothing on record to allege that Shri Kothari had conspired or connived with the main protagonist in the attempted export of red sanders, he will definitely have to take the blame for having facilitated the entire modus operandi by allowing use of his IEC and also allowing bank account to be used by Shri S. Vasudevan - penalty is very much imposable on Shri Kothari. However, taking note of the fact that no active abetment, connivance or conspiracy with the main perpetrator has been alleged or brought out in the SCN, penalty of ₹ 10 lakhs is certainl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purportedly engaged as Clearing, Forwarding, Transport and Indenting Agents; that they approached one Shri Surya Prakash Kothari (appellant herein) of Prism Granites and ordered for granite slabs; that they paid the money in advance and exported granite slabs on three occasions in the name of Prism Granites; that Shri Kothari had lent his IEC to them; that sale proceeds by way of bank realization was arranged through Indian Overseas Bank, Madurai; that after receipt of money through the bank Shri Kothari paid the already received money back to Vasudevan @ Ravi. It appeared to the department that Senthil Murugan @ City Raja and Vasudevan @ Ravi had engaged themselves in the act of attempting export of Red Sanders in the guise of granite sla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Granites. ii) None of the persons involved in the case have implicated Shri Surya Prakash Kothari or Prism Granites, in the alleged smuggling activity of red sanders. SCN also has not alleged any connivance of Shri Kothari or Prism Granites with any of the conspirators involved in smuggling of red sanders. iii) Prism Granites only received correct consideration for the granite exported by them and nothing extra has been received over and above the invoice amount. Even for the impugned consignment, value mentioned in the invoice is the correct value. iv) There is nothing to indicate in the evidence that the granite slabs were used as cover cargo by Surya Prakash Kothari or Prism Granites for alleged smuggling activity by him. v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s operandi. It also appears to reason that the consignment of granite slabs might have been camouflage cargo to be presented for Customs examination to be possibly substituting later within the consignment of red sanders in another identical container on which the same container number and other markings had been got done. 5.2 Be that as it may, the issue that comes up for decision here concerns only the aspect of abetment or otherwise on the part of Shri Surya Prakash Kothari of Prism Garments so as to impose penalty under Section 114 (i) of the Customs Act, 1962. 5.3. To understand the issue better, it would be worthwhile to reproduce the concerned Section 114 (i) of the Act under which the penalty has been imposed as under : S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been happened to any other prudent person. 5.5 This being so, while there is nothing on record to allege that Shri Kothari had conspired or connived with the main protagonist in the attempted export of red sanders, he will definitely have to take the blame for having facilitated the entire modus operandi by allowing use of his IEC and also allowing bank account to be used by Shri S. Vasudevan. 5.6 At the same time, we are also unable to accept the conclusions of the adjudicating authority that Prism Granites acted hand in glove in the whole planning and had got high price for the granites. This is surely not supported by facts as narrated in the SCN. The adjudicating authority himself has found in paras 58 59 of the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch imposable on Shri Kothari. However, taking note of the fact that no active abetment, connivance or conspiracy with the main perpetrator has been alleged or brought out in the SCN, penalty of ₹ 10 lakhs is certainly on the higher side and therefore reduce the same to ₹ 3,00,000/- (Rupees Three lakhs only). We make it clear that we are not interfering with any other portion of the impugned order. The impugned order is modified only to the extent of reducing the penalty from ₹ 10,00,000/- imposed under Section 114 (i) ibid on the appellant Shri Surya Prakash Kothari to ₹ 3,00,000/- (Rupees three lakhs only). The appeal is partly allowed on above terms. ( Operative part of the order pronounced in court ) - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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