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TMI Blog2022 (10) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... goods namely container has not been confiscated. Further, the learned counsel for the appellant has raised argument on the basis of the recent Notification No. 56/2015-2020 dated 18.2.2019. Therefore, whether the items namely red sanders was restricted item (license needed for export) during the relevant time has to be examined, it is opined that as the Commissioner (Appeals) has only remanded the matter to relook into the non-imposition of penalty. The appellant would be getting sufficient chance to put forward documents and arguments to establish their innocence. Appeal dismissed. - Customs Appeal No.40820 of 2021 - Final Order No. 40345 / 2022 - Dated:- 17-10-2022 - Ms. Sulekha Beevi C.S., Member (Judicial) Dr. R. Sunita Sundar, Advocate for the Appellant Shri M. Ambe, DC (AR) for the Respondent ORDER Brief facts are that the Directorate of Revenue Intelligence, Chennai Zonal Unit received specific intelligence that red sander logs are being smuggled out in the export consignment filed in the name of M/s. Polyhose India (Rubber) Pvt. Ltd. in a 20 feet container in which the goods are declared as wire braided rubber hydraulic hose . The port of discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have not been issued any notice. Since there are no proceedings against the actual parties who committed the offence, the appellant cannot be charged the offence of abetting the attempt to export the red sanders. In the absence of prosecution of parties who have actually committed the offence, the allegation against this appellant is not sustainable. 3. In the Order in Original, it is clearly stated that the shipping bill was field by M/s. Polyhose India (Rubber) Pvt. Ltd. and the seals were intact when the DRI examined the container. However, instead of the declared cargo, red sander logs were found and the same were seized. The container was released and there was no order of confiscation of the container. The appellant having only arranged the container cannot be liable for penalty in the absence of order for confiscation of the container. 4. The learned counsel adverted to the recent Notification No.56/2015-2020 dated 18.2.2019 to argue that the Export Policy of red sander has been amended whereby the prohibitions and restrictions have been relaxed. The said notification has come into force before the date of passing of the Order in Original and the same has to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance work in terms of CBLR, 2013. From the above, it is obvious that the respondent abetted Shri Sabarivasan and his aides in misusing the IEC of M/s. Polyhose India (Rubber) Pvt. Ltd. in filing the shipping bills, hence they are liable for penalty under sec. 114 of the Customs Act, 1962 for having acted in a careless and reckless manner, which act had paved the way for smuggling of red sanders, thus for such omission and commission, they are liable for penalty under sec. 114 of the Customs Act, 1962 as well. Therefore, for the above discussions, the impugned Order in Original insofar as it relates to non-imposition of penalty under sec. 114 of the Customs Act, 1962 on M/s. Pennashin Shipping India Pvt. Ltd., Freight Forwarders is set aside and the case is remanded back to the adjudicating authority for consideration of modification of the impugned Order in Original to the extent of non-imposition of penalty under sec. 114 of the Customs Act, 1962 on M/s. Penanshin Shipping India Pvt. Ltd., Freight Forwarders and pass appropriate orders as deemed fit within 30 days of receipt of this order. 9. The facts reveal that one Shri S. Sabarivasan approached Shri S. Jagadeesan of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable for penalty under sec. 114 of the Customs Act, 1962. 11. Interestingly, though the adjudicating authority has ordered for confiscation of the red sander logs / saw dust, he has refrained from confiscation of the container under sec. 119 of the Customs Act, 1962. So also he has refrained from imposing penalty under sec. 114 of the Customs Act, 1962 on the appellant. Section 114 reads as under:- 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 liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act]], whichever is the greater; [(ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent. of the duty sought to be evaded or five ..... X X X X Extracts X X X X X X X X Extracts X X X X
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