9911796707
TMI Blog2022 (3) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants regarding their involvement in the substitution of the cargo or tampering of the seal. In the circumstances, we confirm our prima facie view, set aside the confiscation of the container and the penalty imposed on M/s. Caravel Shipping Services Pvt. Ltd. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 89265 of 2018 with Customs Appeal No. 89276 of 2018 - A/85155-85156/2022 - Dated:- 21-2-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Prashant Patankar, Consultant, for the Appellant Shri Manoj Kumar, Deputy Commissioner and Shri Bhushan Kamble, Assistant Commissioner, Authorised Representatives, for the Respondent ORDER These appeals are directed against order in appeal No NSK/EXCUS/SSP/APPL/106/2018 dated 29.06.2018 of the Commissioner (Appeals), CGST Central Excise, Nashik. By the impugned order, the Commissioner (Appeals) has held as follows: ORDER The appeals filed by both the appellants are rejected and order in Original No 27/JC/Adj/2017 dated 21.03.2017 passed by the Joint Commissioner, Central Excise, Customs and Service Tax, Nashik-I Commissionerate is upheld. So ordered. 1.2 Joint Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Maharashtra State Warehousing Corporation, CFS, Dronagiri Node, Uran, Dist- Raigad on 21.03.2016. 2.2 The container was examined in presence of Appellant 2 who is partner in the exporting firm Appellant 1 and proper panchnama dated 23.03.2016 drawn. 2.3 The container was found sealed with agent seal bearing 'ARC line Dubai 023275' and Central Excise seal number '027537' with markings Central Excise Customs, Nashik-1 . After cutting the seals it was found to be stuffed with reddish brown coloured wooden logs of different sizes which appeared to be 'Red Sanders' concealed under 311 jute bags containing onions. The net weight ascertained of the wooden logs appearing to be red Sanders was found to be approximately 11750 kgs and that of Onions as 15190 Kgs. As the Red Sanders is listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Flora Fauna (CITES) and export of the same are Prohibited under the current export policy, representative sample from the Wooden Logs appearing to be Red Sanders were sent to the Regional Deputy Director, Wildlife Crime Control Bureau, Western Region, CBD, Belapur, for testing vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exhibiting gross negligence in not verifying his address, not asking for his PAN Card and also allowing the container booked by them along with the goods to be transported by the truck trailer to be arranged by him. Appellants failed to give any explanation as to why they agreed to lose temporary control of their goods, for the short period from their premises to ICD Janori, to be transported by the truck trailer arranged by Sanjay Pawar and allowing it to be taken by Sanjay Pawar's person and not by their regular transporter. despite having agreed upon that the payment should be received in advance they still went ahead with shipment of the cargo in spite of the fact that the first consignment of export of tomatoes was diverted at a last moment to one of their regular buyers because of non-receipt of payment in advance from Sanjay Pawar. 2.9 Appellant 2 who is the main acting partner of the Appellant 1 admitted that he was responsible for all affairs of the firm as only he looked after all the matters and has been in the export business for quite some time. Despite being aware he was very casual in his dealings with Shri Sanjay Pawar. 2.10 On completion of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals. 3.1 I have heard Shri Prashant Patankar, Consultant for the appellants and Shri Manoj Kumar, Deputy Commissioner and Shri Bhushan Kamble, Assistant Commissioner, Authorized Representatives for the revenue. 4.1 Have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 In the order in original Jt Commissioner has recorded the findings as follows: 10.1 The Noticees has contended that both the noticees i.e. M/s. Marathon Corporation, Mumbai and Shri Nilesh Katira one of the partners in M/s.Marathon Corporation had no role in the attempted export of prohibited goods and they didn't abet the act of Commission of Sanjay Pawar rendering the goods liable for confiscation, hence they are not liable for penal action under Section 114(i) of the Customs Act, 1962. I have gone through the present SCN and the reply submitted by the noticees and find that Sanjay Pawar is the main conspirator who hatched a criminal conspiracy to smuggle Red Sanders and he not only arranged the Red Sanders, but also managed to pose as an agent for overseas clients for vegetables and contacted M/s. Marathon Corporation, for supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts, he dealt with so called Sanjay Pawar in a very casual manner without taking into consideration the basics of the care and precautions any exporter/importer is required to exercise before making any deal. As a prudent businessman/exporter, he was required to know the credentials of the person he was dealing with. The failure on the part of Shri Nilesh Katira shows that he had taken his business too lightly and had also taken least care of the provisions of rule of land governing the exports. While he attempted to export the first consignment of Tomotoes to buyer linked with the Sanjay Pawar, he got the experience that overseas buyer or the Sanjay Pawar is not trust worthy. Despite that experience he went ahead in dealing with the said Sanjay Pawar for further exports and in this dealing also, the amount agreed was not received by him in advance as agreed upon in spite of the repeat experience, he went ahead with future exports. Shri Nilesh Katira neither attempted to verify the credential of Sanjay Pawar nor of the overseas buyer named by Sanjay Pawar, despite of he was a frequent visitor to Dubai for his export business as most of their overseas clients were based there. Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a lot difference in the precedential value of a decision. 10.6 The Sanjay Pawar (absconder and still to be apprehended) is the main conspirator in organising the illegal attempted export of Red sanders of international value of ₹ 4.70 crores vide Shipping Bill No. 6196190 dated 01.03.2016 with his accomplices. The Summons under Section 108 of the Customs Act 1962 could not be issued to Yadav, the Driver as no addresses could be assigned to him. As regards transporter company M/s.Soham Transport, summons was issued but could not be served as it was not found existing on the given address. Since Sanjay Pawar is absconding and is yet to be apprehended, action against him is kept in abeyance. Whenever he and his accomplice are apprehended, their statement(s) will be recorded under Section 108 of the Customs Act, 1962 and used as evidence against him/them and/or any other person to initiate action under Customs Act 1962, Foreign Trade (Regulation) Rules 1993, and relevant provisions of Indian Forest Act 1927 and for violation of CITES convention. 4.3 From the above findings the adjudicating authority has proceeded to impose penalties under Section 114 (i) of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of goods from ICD / CFS, the exporters are required to bring their goods meant for export to ICD / CFS and to file six copies of Shipping Bill along with all necessary documents like GR Form, AR Form, certificates issued by Export Promotion Councils, documents regarding quotas wherever applicable, etc. The Shipping Bills will be assessed as usual, the goods examined, samples drawn, if required, inspection carried out by other agencies under any one of Allied Acts. After the assessment of Shipping Bills, original and duplicate Shipping Bills along with two more copies (transference copies) and original GR from will be retained at the ICD. The original GR form will be forwarded to respective branch of Reserve bank of India. 5. The examination order would be given on duplicate and both transference copies of Shipping Bill. The report would also be recorded on all these copies, duplicate copy of S/B would be retained in ICD and transference copies would be forwarded to the Airport \ Port. FOB value of goods would be debited from the continuity bond executed by the custodians. After the examination is over, all the packages would be handed over by the Customs Authorities to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 to him. The truck or Shri Anslam or Shri Raja are traceable after the incident. If Shri Farook Basha was employing Shri Anslam as acting driver and also sold vehicle to him, he ought to be able to furnish details of Shri Anslam. All these lead to the strong inference that the agreement of sale is an afterthought to absolve from liability. 34. The appellants plead total ignorance about the attempted smuggling of red sanders. The contention of the appellants that they kept the blank signed letter head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the charges levelled against them and cannot be accepted. I find that department has been able to establish the guilt/charge of abetment on the part of appellants. The penalties imposed on each of the appellants are legal and proper. It is further observed from the para 12 of the order that the adjudicating authority has in that case imposed penalty under Section 114, without specifying the relevant clause of that section, whereas in the present case the penalty has been imposed specifically in terms of Section 114 (i) which is very specific and applicable only to the exportation of prohibited goods. 4.7 In similar facts and circumstances in case of Maheshwari Rocks (I) Pvt Ltd [2010 (262) ELT 574 (T-Chennai)] following was held: Heard both sides. While dealing with the stay applications filed by the appellants, the following order was passed : A shipping bill was filed on 12-7-2006 in the name of M/s. Maheshwari Rocks India Pvt. Ltd., (MRIPL) Bangalore for export of a consignment of polished granite tiles. When the consignment reached the Chennai Port, officers of DRI inspected the container and the cargo. It was found that the one-time seal and the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d their recovery. 2. Ld. JDR reiterates the findings of the Commissioner. 3. We have carefully considered the submissions by the learned counsel for the parties. We observe from the impugned order that the Commissioner has found that the exporter had not behaved in a responsible and sensible manner. They had entrusted the export goods with two unknown persons S/Sh. Muralikrishna and Ramesh to transport the same to the ICD, Bangalore. Like-wise, the other appellant M/s. CSSPL had arranged the vehicle to carry; the impugned goods on the request of S/Sh. Muralikrishna and Ramesh, who were neither the exporter nor the CHA. According to him, the steamer agent should have verified the antecedents of the above two persons before handing over the vehicle to carry the goods. He also records in the order that at the time of examination of the goods at the ICD, they were found as declared. 4. We observe that the Commissioner has not found that both the appellants were aware of the design of S/Sh. Muralikrishna and Ramesh to substitute the export goods tiles with contraband red sander logs. He has only found that the exporter did not behave sensibly and responsibly. The observat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
