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TMI Blog2019 (9) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... for confiscation under section 113 of the Customs Act, 1962 - The show cause notice and the order in original have proceeded to impose penalties on the appellants not for abetting or for any act of omission or commission leading to confiscation of goods as per section 113 of the Customs Act, 1962. Penalties u/s 114 of CA - HELD THAT:- Not even investigations reveal that the appellants have not acted in manner expected of them in normal course of business to facilitate the fraud being perpetuated by the fraudsters - In absence of any such charge or finding in the impugned order, that any of appellant has deliberately knowingly or unknowingly assisted in commission of fraud by the fraudsters, we are not in position to uphold the penalties imposed under Section 114 of the Customs Act, 1962 - Penalty set aside. Penalties u/s 117 of Customs Act, 1962 - HELD THAT:- Penalty under Section 117, could have been imposed only in cases where the Custom Act, do not prescribe for imposition of penalty under any other provision. Once we have set aside the penalties under Section 114, we proceed to examine the penalties imposed under Section 117. In fact the Commissioner in his order have ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shubh Fab Tex 33 - 33 2 C/85475/2013 Albatross Shipping Ltd 20 1 21 3 C/85476/2013 Raghavan Nambiar 10 1 11 4 C/85477/2013 Krishnan Venkatesh 10 1 11 5 C/85659/2013 Yogesh Ramchandra Adak 10 1 11 6 C/85660/2013 Nityam Khosla 10 1 11 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 46 of his order recorded as follows: 43. I find that framing of penal charges against the said actual exporters/ owners of the goods has kept reserved by the investigating agency till they are traced and apprehended. Therefore, the show cause notice did not propose penalties against the actual exporters. I acceded to the proposal made in the show cause notice. 46. With regard to Shri Kishor Ghag, Shri Pramod, Shri Deepak and Shri Atul Jadhav and any other person/ firm or company who claim to be the exporters/ owners of the subject goods: (i) I re-determine the value of the goods (declared as synthetic filament yarn other than sewing thread polyester texturised yarn ), covered under shipping bill no 9296841 dated 27.01.2011, of a declared value of ₹ 8,94,919/- and found to be Red Sanders Wood Logs of a total net weight of 25,260 metric tons, as ₹ 2,02,08,000/- as per the provisions of Customs Valuation (Determination of Value of Export Goods) Rules, 2007 read with section 14 of the Customs Act, 1962 for reasons and in the manner described under para 24.1 above and I order absolute confiscation of the said goods u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainer service provider and fake invoices were made and signatures rubber stamps of concerned Central Excise Authorities were forged. The contraband goods were clandestinely stuffed in the container and used the vehicles fitted with false number plates and brought inside the CFS. Once the container was brought inside the CFS, after obtaining Gate Officer s endorsement, the goods were registered and LEO was obtained. By following the same modus operandi, though the past export was consignment was exported vide shipping bill no 9214488 dated 4.1.2011, the present consignment vide shipping bill no 9296841 dated 27.1.2011 was seized before it was exported. 4.3 Section 114 117 of the Customs Act, 1962 under which the Commissioner has imposed penalties on the appellants before us are reproduced below: SECTION 114. Penalty for attempt to export goods improperly, etc. - Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Not even an iota of evidence has been recorded in the show cause notice or in the impugned order to show/ attribute any knowledge to any of appellants in respect of the fraud being done by the fraudsters, who were involved in the illegal export/ attempt to illegally export the red sanders. The show cause notice and the order in original have proceeded to impose penalties on the appellants not for abetting or for any act of omission or commission leading to confiscation of goods as per section 113 of the Customs Act, 1962. Not even investigations reveal that the appellants have not acted in manner expected of them in normal course of business to facilitate the fraud being perpetuated by the fraudsters. In absence of any such charge or finding in the impugned order, that any of appellant has deliberately knowingly or unknowingly assisted in commission of fraud by the fraudsters, we are not in position to uphold the penalties imposed under Section 114 of the Customs Act, 1962. To the same effect view has been taken by the tribunal and High Court in similar circumstances in following decisions. Bimal Kumar Jain [2004 (177) ELT 389 (T-Mum)] b) There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 7. We find that penalties were imposed under Section 114 of the Customs Act which provides that any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 113, or abets the doing or omission of such an act, shall be liable for penalty. In the present case, there is no material available on record that the appellants did anything or committed anything in connivance or with the knowledge of the exporter. So, in the facts and circumstances of the case, in our view, the imposition of penalties under Section 114 of the Act are not warranted. We are not concerned with the case of the exporter. In any event, there is no material available that the CHA and his employee had any knowledge on the quality, quantity and value of the export goods. Bharatkumar Bakorbhai Parmar [2008 (231) ELT 30 (Guj)] 6. On the basis of statements of co-noticees and these three respondents and the finding was arrived at by the Commissioner of Custom that these persons have failed to discharge their duties properly and they registered the old vehicles without calli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own that his acts or omissions were significant and facilitated to the export. Neither of these requirements was satisfied. Since all the three respondents are subordinate to Mr. Mehta, they were duty bound to act as per his instruction. There is nothing on record to show that they have played any active role in facilitating an illegal export of Vintage cars. To some extent, the role of Mr. Mehta in this entire transaction is found questionable. For that purpose, we have already issued notice for final disposal in Tax Appeal No. 1975 of 2006. This being the finding of fact by the Tribunal, we are of the view that no substantial question of law arises out of the order of the Tribunal and hence all the three Appeals are accordingly dismissed. Sekar Sekar Process [2010 (262) ELT 385 (T)] 3. I have heard both sides. The finding of the Commissioner against the appellants is contained in paras 28 to 30 of the impugned order. He has held that the exporters arranged export consignments without even meeting or knowing the credentials or genuineness of Shri Rajkumar. They did not verify the personal details and even accepted advance payment from him. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument given by some Shri S.S.Sivakumar for monetary considerations, which paved the way for unauthorized persons access to the customs clearing formalities and enabled unscrupulous persons in facilitating the smuggling of prohibited goods. 6. With regard to the above said finding of the Original Authority, the Tribunal, in the order under challenge, held as under: 4. I find that apart from a vague allegation in para 51 of the impugned order (supra) that the appellant had failed to discharge his functions as a CHA, in the entire order, there is no finding of a positive role of the appellant in the attempt to smuggle out red sander wood logs or the manner in which he abetted the attempt. For failure to discharge functions as a CHA, penalties are provided in the Custom House Agents' Licensing Regulations. In the absence of any finding showing that the appellant had abetted the failed effort to smuggle out prohibited red sander wood logs, I find that penalty imposed on the appellant under Section 114(i) is not sustainable. Accordingly, the appeal filed by Shri I.Sahaya Edin Prabhu is allowed. 7. The Tribunal has rendered a categ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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