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TMI Blog2021 (10) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... goods within the container as well as the container was detained under Mahazar, dated 22.11.2017. Initial enquiries revealed that the shipping Bill dated 15.11.2017 for export of the goods inside the container was filed by one Shri N. Saravanan of M/s. S.K.P. Logistics. 2. Detailed examination of documents under Mahazar proceedings were conducted at M/s. A.S Shipping Agencies Pvt. Ltd., CFS [hereafter referred to as "M/s. ASSA - CFS" ], where the subject goods were loaded and cleared for export. As per the export documents pertaining to the said shipping bill dated 15.11.2017, the overseas buyer was M/s. Mivion General Trading LLC, UAE and port of discharge was Sharjah, UAE. The Customs broker noted in the documents was M/s. G. Kathiravan. The declared item/cargo was 100% Cotton Knitted Tufted Floor Mat - Colour - ASTD in 202 packages. The F.O.B. value declared was Rs. 7,47,044/-. On inspection, it was also revealed that the fasteners (rivets) found on the Customs Sealing Point (latches) and Steamer Agent's Sealing Point (latches) of the container were found tampered which demonstrated that the fasteners were removed without cutting the seal. The container was found to contain 804 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l check list copy, Cargo Inward Register, Surveyor Tally Sheets, Driver's record from RFID and CCTV footage CD copy. On scrutiny and perusal of these documents, it was noticed that the export cargo had been brought into M/s. ASSA-CFS by two lorries bearing Registration No.TAN 4757 and TN 28 & 8449. It was also noticed that one Shri S. Raja, Madurai was the driver, who brought in the subject container TCKU 1752615 into the CFS and then to the port by using trailer truck bearing no.NL02-Q-2873. 7. Accordingly, it was noticed that harbour entry permit for the drivers Shri Raja and for the vehicle NL02-Q-2873 was issued by Chennai Port Trust based on the recommendation of M/s. N.K. Transport Trailer Organisers Association, Chennai. Only vehicles of transport associations [GTA agencies] will be allowed to carry goods into the CFS area and then to the port. Individual lorry owners are not permitted/not given pass to enter into the CFS or the harbour. Shri Raja used the trailer truck bearing no.NLO2-Q-2873 to carry the container in and out of the CFS area and also into the harbour by using the letter issued by M/s. N.K. Transport. Shri A. Mohamed Naseer is the Proprietor of M/s. N.K. Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter without giving correct KYC documents] along with Shri S. Raja of Madurai and Shri M. Anslam planned and executed this act of attempt to smuggle Red Sanders out of the country so as to avoid the trail leading to him. (v) Shri S. Raja of Madurai and Shri S. Anslam of Madurai, who drove the trailer NL02-Q-2873 loaded with container TCKU1752615 en-route from container yard to CFS and then from CFS to Chennai Port had actively involved in the conspiracy and executed this act of attempt to smuggle Red Sanders out of country. (vi) Shri S. Raja of Madurai and Shri M. Anslam of Madurai, drivers of the trailer NL02-Q-2873 in conspiracy with Shri S. Saravanan of M/s. Sara Shipping, Coimbatore by submitting their fake Ids, addresses and by transporting the container from yard to CFS and from CFS to Port and executed this act of attempt to smuggle Red Sanders out of the country so as to avoid the trail leading to him/them. (vii) Shri Mohammed Naseer, Proprietor of M/s. N.K. Transport had given his company's blank letter head along with recommendation letter with his signatures to Shri Farooq Basha, who hold the trailer NL02-Q-2873 which leads to get Harbour Entry permit for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aji Salai, Chennai - 600 001, as to why penalties under section 114 of the Customs Act should not be imposed on them for having abetted this act of smuggling Red Sanders in the manner described in the foregoing paragraphs." 12. After due process of law, the original authority vide order impugned herein passed the following order:- (i) In confiscate the 804 Nos. of Red Sanders logs totally weighing 9.040 MTs and valued at Rs. 3,61,60,000/- [Rupees Three Crores Sixty one Lakhs and Sixty Thousands only] under section 113(d), 113(e), 113(f) and 113(h) of the Customs Act, 1962 read with Sl.no.188 of Schedule 2 [Export Policy] of ITC (HS) Classification of Import and Export Items, issued under the provisions of Foreign Trade [Development & Regulation] Act, 1992. (ii) I also confiscate the Floor Mats in 27 Nos. HDPE Sacks Door Mats valued at Rs. 1,02,510/- [Rupees One Lakh Two Thousands and Five Hundred and Ten only] under section 113(i) and section 119 of the Customs Act, 1962. (iii) I also confiscate the remaining Floor Mats which are not physically available for seizure or confiscation, under section 113(k) of the Customs Act, 1962 as the same appear to have not been exported af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heads misused by the driver Shri S. Raja, who used the trailer for carrying the container with smuggled goods into CFS and Port. That even assuming without admitting that this allegation is true, it will not lead to contravention of section 114 of the Act ibid. 16. The appellant Shri Farooq Basha has stated before the authorities below that he was doing the business of purchasing and selling vehicles. The said trailer NL02-Q-2873 was purchased and remodelled by him. He used to send the vehicles for local trip for hire basis using one acting driver. The name of one such acting driver is Shri Anslam. One day, this Shri Anslam contacted him saying that the vehicle is required for a container movement from Sriperumbudur to Chennai and he has fixed the rent as Rs. 9,000/-. Shri Anslam had earlier forged diesel expenses. So Shri Farooq Basha did not use Shri Anslam as acting driver for the said consignment. After one week Shri Anslam returned with another person as acting driver. Shri Farook Basha then informed him that the trailer is not for hire and is for sale only. Shri Anslam then requested to sell the trailer to him. The trailer truck was sold to Shri Anslam vide sale agreement da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . These were used by Farooq Basha when the vehicles were given on hire basis by acting drivers. These blank letter heads by omission happened to be left inside the trailer truck NL02-Q 2873 when it was sold to Shri Anslam. They misused these letter heads to obtain entry pass to CFS and Port. It was done without the knowledge of the appellants. The vehicle having been sold the appellants had no role in the attempt to smuggle red sanders. Such allegations do not attract the ingredients of Section 114 of the Customs Act, 1962. 19. The learned counsel submitted that the word "abetment" used in section 114 of the Customs Act is not defined in the said Act. However, section 107 of IPC defines abetment, which states that "a person abets the doing of a thing when he instigates any person to do that thing or engages with one or more other persons in any conspiracy for the doing of that thing or intentionally aids in the said act". The learned counsel submitted that ‗mens rea' is an essential ingredient to establish abetment. The vehicle having been sold and the blank letter heads having been misused without the knowledge of appellants it cannot be said that appellants, have intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (358) E.L.T.389 (Tri.-Chennai) to argue that suspicion however strong cannot be substitute for proof. 22. The decision in the case of M/s.Vishnu Kumar Vs Commissioner of Customs, New Delhi reported in 2010 (260) E.L.T. 356 (Del.) was relied upon by the learned counsel to argue that intentional aiding is the gist of abetment. In the present case, appellants had no knowledge about smuggling of Red Sanders and, therefore, the act of leaving blank letter heads of M/s. N.K. Transports in the trailer cannot be considered as omission amounting to abetment. He stressed that the department has not been able to establish that appellants intentionally aided the commission of the crime. Mere proof that the crime charged could not have been committed without inter-position of the alleged abettor is not enough to attract section 107 of IPC. The decision in the case of M/s.Ajoyesh Chakraborty Vs Commissioner of Customs, N.E.R. Shillong reported in 2003 (160 E.L.T.735 (Tri.- Kolkatta) was relied upon by the counsel to argue that in the said case when there was no evidence on record to show that the transport company had knowledge of illegal export, the benefit of doubt was extended to them and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught. The said document would not absolve the liability of Shri Farooq Basha. 25. The contention of Shri Mohamad Naseer that he used to give blank letter heads to Shri Farooq Basha for procuring Harbour Entry Pass on earlier occasions and that such letter heads were kept in the trailer truck and came to be passed on when it was sold and the same came to be misused by Shri Anslam and driver Shri S. Raja is only a concoted story put forward to absolve from liability. This contention itself reveals the illegal omission on their part of not keeping in safe custody of such important letter heads which has aided in the act of attempt to smuggle Red Sanders. The investigation has clearly brought out the involvement of the appellants in the incident of attempt to smuggle goods out of the country. He referred to para 43 to support his contentions. He prayed that the appeal may be dismissed. 26. Heard both sides. 27. The appellants are aggrieved by the penalty of Rs. 5 lakhs imposed upon each of them under section 114 of the Customs Act, 1962. 28. The case of the department is that the letter heads of the firm (Good Transport Agency viz., M/s. N.K. Transport) of the appellant Shri A. Moh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pains to argue that for imposing penalty under section 114 on a charge of abetment, it is not enough to establish that the act done by the alleged abettor facilitated the commission of the crime. The intention on the part of the abettor so as to facilitate the commission of the crime has to be proved. It is also stressed by the learned counsel that it is not sufficient to prove that the crime could not have been committed without the intervention/aid of the abettor. The ‗mens rea' on the part of the alleged abettor has to be established. Various decisions have been taken support of by the learned counsel to argue these points. 31. I have no quarrel with the principles enunciated in the above decisions that an innocent aid which ultimately leads to commission of crime is not sufficient to attract the charge of abetment. In the present case, the facts are brought out in para 21.02.01 to 21.02.05 of the Order in Original. For better appreciation relevant portion of para 21.01 is reproduced as under:- "Since August, 2013, he had registered his company in Trailer Organiser's Association and his Firm code was N-176; that for entry into the Chennai Port, applications were is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter he would not give such documents." [emphasis supplied] 32. The appellant Shri A. Mohamed Naseer is the proprietor of M/s. N.K. Transport Agency. Shri Farooq Basha is his cousin. The appellant Shri A. Mohamed Naseer got his company registered in the Trailor Organizers Association since August 2013 and his firm code is N-176. For getting entry into the Chennai Port, only applications presented through Trailor Organizers' Association by a transport agency will be considered. Thus, individual truck owners / drivers are not given gate pass for entry into the CFS / Port. From the details given by M/s. ASS-CFS, the investigation officers found that one Shri Raja driver used Trailor Truck No. NL02-Q-2873 to carry the container TCKU1752615 to the CFS and then to the port. On examination of container after unloading from the vessel it was seen to contain prohibited goods/Red Sanders. The seals affixed by the customs authorities at the CFS after stuffing the container were seen tampered. It is clear that the container was loaded with the prohibited goods before reaching the port somewhere between the time it reached the port. This could not have been done without obtaining a gate pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in (1) fails to surrender the above-mentioned records as agreed, then he is bound to pay compensation, as demanded by the person mentioned in (2). In case the person mentioned in (2) fails to settle the payment, within the instalment period, the person mentioned in (2) shall be bound to pay compensation, as demanded by the person mentioned in (1), along with losing the advance amount. 33. Though. it is contended that the trailor truck was sold and delivered to the purchaser Sh.Anslam on 14.11.2017, there is no evidence for the passing of consideration. Interestingly as per the documents, the gate pass were issued for entry of truck with above two persons name from 17.11.2017 to 23.11.2017. The shipping bill was filed on 15.11.2017 after which container was loaded to the vessel. The DRI Officers intercepted and offloaded the container on 22.11.2017. During the time of investigation Sh.Farook Basha has produced the sale agreement contending that he sold the vehicle to Shri Anslam. This document is produced only after coming to know about the documents unearthed from M/s.ASSA-CFS. Further, the sale agreement is not a stamped document. Shri Farook Basha admits that the truck belongs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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