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TMI Blog2018 (6) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... o evidence that these appellants had colluded or conspired with the exporter or their CHA in their attempt to export MOP under the guise of Industrial Salt - There is also no allegation that the consignment has been brought by these appellants only for the purpose of export. When the Customs authorities themselves were unsure about the nature of the cargo and had to wait till the receipt of the Analytical Report to confirm that it was MOP, it would be unfair to foist an allegation on the CFS or their AGM that they were in the know of the illicit nature of the consignment, yet had allowed it to enter the CFS. When no evidence is found against the main protagonists, we are unable to fathom how Chandra CFS who only acted as a bailee of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation of the seized MOP and imposition of penalty on the alleged exporter, CHA clerk, Chandra CFS (appellant in Appeal No.C/252/2011 and Shri M.B. Sathyam, Asst. General Manager of Chandra CFS (appellant in Appeal No.C/253/2011). In adjudication, the Commissioner (Seaport-Export) vide order dt. 5.5.2011 (Impugned order) inter alia imposed penalty of ₹ 25 lakhs on Chandra CFS and ₹ 10 lakhs on Shri M.B.Sathyam, AGM of Chandra CFS under Section 114 (i) of the Customs Act, 1962. Hence these appeals. 2.1 Today, when the matter came up for hearing, on behalf of the first appellant Chandra CFS, Ld. Advocate Shri Hari Radhakrishnan points out that penalty under Section 114 of the Customs Act can be imposed on a person, who in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri N. Shanmuga Thayumanavan who appeared for the appellant M.B. Satyam, AGM adopted the arguments of Shri Hari Radha Krishnan, Advocate. He also submits that Shri M.B.Satyam was only an employee of the main appellant and that he had allowed the impugned cargo to be brought within the CFS on the bonafide belief that shipping bill would be filed at the earliest. Moreover, there is no other allegation against him that he had connived or was actively involved in the attempt to export MOP by the exporter. 3. On the other hand, Ld. A.R supports the impugned order. He draws our attention to para 26 (f) of the SCN to contend that as per Section 113 (d) of the Customs Act, any goods attempted to be exported or brought within the limits of any cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remKumar Mohan and Shri Senthilnathan. Shri M.B.Sathyam also has stated that the above two persons only discussed about the export of 'Industrial Salt' in huge quantity from their CFS and booked space for the cargo and therefore he allowed the 423.7 MTs of 'Industrial Salt' into their CFS in good faith though the cargo arrived without the shipping bill. vii) As per terms of Para 6(g) of the Notification No.26/2009 Cus (NT) dated 17.03.2009, it is the responsibility of the CFS (Custodian) not to permit any cargo for export to enter the Customs Area without a Shipping Bill having been filed with the proper officer. The subject export cargo was allowed into the Customs Area in violation of the above Notification M/s.Chandra CFS, Chennai. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that although the impugned cargo was intercepted on 24.07.09 by the Customs authorities, only vide the Analytical Report dt. 3.8.09 which the authorities did come to know conclusively that the goods were MOP. When the Customs authorities themselves were unsure about the nature of the cargo and had to wait till the receipt of the Analytical Report to confirm that it was MOP, it would be unfair to foist an allegation on the CFS or their AGM that they were in the know of the illicit nature of the consignment, yet had allowed it to enter the CFS. This point is even more pertinent, when we find that there is no allegation or evidence that these appellants were part of the conspiracy along with the exporters etc. and that they were in any way aw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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