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TMI Blog2019 (1) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... e foreign supplier. It is very difficult to believe that goods for which an order has not been placed and for which payment has not been made would arrive just like that without the active knowledge of the importer. The importer has filed the Bill of Entry under Section 46 of the Customs Act, 1962. The importer has accepted his guilt in the statements given before DRI. As such, the importer cannot hide under the reason that they have simply signed the documents given by the CHA for the purpose of clearance of the cargo. The thrust of appellant argument is that they were not aware of the clandestine/illegal clearance of the goods from the port premises itself without payment of duty. Such an argument would not obviate the fact that they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. Accordingly, they have investigated the case and have issued a show-cause notice to various appellants proposing confiscation of goods and imposition of penalty on M/s. Trichur Traders and Shri C. K. Boban and Shri A. R. Ajeesh. 2. In a follow-up, DRI has also registered a case against M/s. Cherry Medicals, Trichur alleging mis-declaration and illegal clearance in the past. A show-cause notice was issued confirming duty proposing confiscation while imposing penalties on persons involved therein. Shri A. R. Ajeesh is one such person. In both the cases, it was alleged that the imported items were mis-declared and the contents of the containers were illegally being removed from the port premises with the help of Shri A. R. Ajeesh, Shri N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey had no role in the evasion of duty. The appellants further submitted that the valuation arrived at was not as per law. They have already suffered arrest and served detention for some time under COFEPOSA. 3.1 Shri A. R. Ajeesh has submitted that he was a student and was son of a CISF constable residing in the port area, neighbourhood of which consisted of officers of customs. He was introduced to one Shri Nandanan who was residing nearby with a customs officer. On being advised by Shri Nandanan, he has joined a car cleaning unit named Rainbow International Car Interior Cleaning and a cargo cleaning unit named Rainbow Impex. He was offered a salary of ₹ 2,000/- per month. Occasionally, he was being used in the cargo clearances ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of having attempted to smuggle out the contents of the container. Shri A. R. Ajeesh gave the work of M/s. Trichur Traders to the CHA. His job was to file import application along with documents and destuffing of the cargo after taking delivery order. The Bill of Lading was given by Shri Boban of M/s. Trichur Traders. He submitted that the facts of the case are very clear and the same have been accepted by the persons involved. Retractions at later stage are of no use. 5. Heard both sides and perused the records. 6. The present set of appeals are only on the issue of penalty. M/s. Trichur Traders contended that they have imported toys from M/s. Girish Trading Company, Dubai and have handed over the work of CHA to M/s. Ramanamurthy an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. However, we are in favour of accepting the contention that penalty cannot be imposed both on the proprietor as well as the firm. Therefore, we find that imposition of penalty on Shri C. K. Boban is valid. Penalties imposed on M/s. Trichur Traders are set aside. Moreover, looking into the circumstance of the case, it is seen that the importer was not present during the clandestine/illegal clearance of goods from the port premises and their role and knowledge in the illegal import is not established reasonably. Looking into the fact that the appellant Shri C. K. Boban has undergone detention under COFEPOSA for some time, the penalty imposed appears to be on the higher side. We find that penalty imposed can be reduced. 6.1 Coming to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalties imposed on him. Even if it is found that some other people are also involved, it would not absolve Shri A. R. Ajeesh of his role in the modus operandi in illegal clearance of goods from the port. Therefore, we find that penalties on Shri A. R. Ajeesh are tenable in respect of both the cases. However, looking into the circumstances of the case and the fact that long years have passed after occurrence of the incident, we are inclined to reduce the penalty. 7. In view of the above, the appeals are partly allowed as below: Sl. No. Appeal No. Appellant Penalty confirmed 1. C/409/2008 M/s. Trichur Traders ..... X X X X Extracts X X X X X X X X Extracts X X X X
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