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TMI Blog2022 (9) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... ifts upon the exporter to prove that the goods were not the smuggled goods. Hence, in this case it was the burden of the appellant to produce the positive evidence proving his innocence beyond reasonable doubts - It has been brought to the notice that Shri Ahmed Ali is wanted in several other cases for similar kind of illegal acts. Accordingly, the appellant has failed to discharge the said burden. Levy of penalty u/s 114 of Customs Act, 1962 - HELD THAT:- The said Section opens up with word any person , the intention of legislature becomes absolutely clear that the imposition of penalty for any such act or omission which would render any good liable for confiscation is not confined merely to the concerned exporter or anyone working u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. On the said suspicion, the Wild life Inspector was called for examination of those wood pieces. He, after examining them, reported that those were the wooden logs of red sanders which is covered under Appendix-II to the CITES (Convention on International Trade in Endangered Species) for which a valid export permit was required. No permit was found with the CHA/exporter. Accordingly, the goods were detained by the Customs alleging those to have been mis-declared and prohibited as such were liable for confiscation under provisions of Section 113 of Customs Act, 1962. Accordingly, those were placed under seizure vide Panchnama dated 10.12.2014. The seized goods were covered under jute bags and were handed over to the custodian i.e CELEBI vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.06.2015 all, as are named above except Shri Gagan Bindra, were proposed to be imposed with the penalties under Section 114 of the Customs Act, 1962. The declared value of seized consignment was proposed to be rejected and the consignment was proposed to be confiscated under Section 113 of the Customs Act, 1962. This proposal was initially confirmed vide Order-in-Original No. 46/2016 dated 05.10.2016. The appeal thereof has been rejected vide order under challenge. 4. I have heard Shri Awneet Singh, learned Counsel for the appellant and Shri Mahesh Bhardwaj, learned Authorized Representative for the department. 5. Learned Counsel for the appellant has submitted that Appellant, Shri Vir Bahadur has been an office boy to the CHA other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R has laid emphasis upon the findings of the Commissioner (Appeals) in para 6.2 of the order under challenge. It is submitted that it was appellant only who forwarded the all requisite documents required for the impugned export to the G-Card holder of the CHA who processed the impugned shipping bill. Learned DR further impressed upon that the presence of the appellant on 13.11.2014 when the goods were examined by the Customs Officers speaks about the involvement of the appellant in the impugned export of prohibited red sanders. Hence, there is not infirmity when the penalty upon the appellant has also been imposed along with all others who were apparently and admittedly involved in the impugned export. It is also submitted that no other co- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Ahmad Ali who was the main person behind this illegal export of prohibited goods. Everyone in this chain i.e. Shri Yogesh Suri, Shri Vir Bahadur, Shri Anil Pandey and Shri Anand Shankar Jha was aware of the procedure of export as they were either working with or worked with a CHA firm. Therefore, it is hard to accept that they accepted to do this Job viz, export goods in good faith or as it was recommended by their friends. They acted in cahoot according to a game plan. Thus they had mala fide intentions and hence, they attempted to facilitate the illegal export through their act of omission and commission. Shri Yogesh Suri's failure to follow the proper procedure for exporting the consignment and failure to comply with KYC norms as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lens of these observed admissions of the appellant and these undisputed facts, there appears no infirmity in the findings as have been arrived at by Commissioner (Appeals) in Para 6.2 of the order under challenge. 9. Since, there is no denial that the goods which were concealed in the impugned export consignment were the prohibited goods and under the garb of mis-declaration were tried to being smuggled. It is Section 123 of the Customs Act, 1962 which comes into picture. The said section makes it clear that where any goods which are seized under the reasonable belief of being smuggled, the burden of proof shifts upon the exporter to prove that the goods were not the smuggled goods. Hence, in this case it was the burden of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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