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TMI Blog2023 (8) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... upees One Lakh only) by the lower appellate authority. 2.1 Briefly stated the facts of the case are that M/s. Artisan's Welfare Society, Villupuram had filed a free shipping bill No. 6609463 dated 09.12.2011 through the appellant-CHA viz. M/s. Shalom Forwarders, Tuticorin for export of wooden cupboards, pillar tops, table and book shelf and wooden pillars, without claiming any export incentives. 2.2 On the basis of specific intelligence received, the SIIB Officers of the Custom House, Tuticorin have detained the consignment and on detailed examination in the presence of State Government Forest Officer, which resulted in the seizure of the above goods since the pillar tops and wooden pillars were found to be made of Red Sanders wood. 'Red Sanders' is a notified item and its export is prohibited under the Customs Act, 1962 read with the Foreign Trade (Development and Regulation) Act, 1992, the Foreign Trade Policy 2009-14 and ITC (HS) Schedule 2. As per Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992, all goods to which sub-section (2) applies shall be deemed to be goods, the import or export of which has been prohibited under Section 11 of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to believe that it was a genuine business without violating any Customs Rules and Regulations. 3.2 He has contended that he has acted truthfully and has not done anything knowingly or intentionally; that he was not aware of the quality or quantity of the cargo being exported; based on the declaration on the invoice and packing list by the exporter, the shipping bill was filed; that mere acceptance for doing clearance work for the above impugned shipment could not be inferred as abetment in the attempted illegal export. 3.3 Thus, he has argued that he has not done any act or omitted to do any act to abet illegal export of the said shipment in order to attract penalty under the provisions of Section 114(i) of the Customs Act, 1962; that no mis-declaration was made knowingly or intentionally and he has wilfully violated neither the provisions of the Customs Act nor the Customs House Agents Licensing Regulations. He has also accepted that in the past, he had handled two consignments for M/s. Artisan's Welfare Society, contending that it was not possible to be aware that the export goods were made from Red Sanders. 4.1 Ld. Advocate Shri A.K. Jayaraj has vehemently argued that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulations, 2004. 4.5 Reliance was also placed on the decision rendered in the case of M/s. Kunal Travels (Cargo) v. Commissioner of Customs (I&G), IGI Airport, New Delhi [2017 (354) E.L.T. 447 (Del.)] by the Hon'ble Delhi High Court which has held that a CHA or its proprietor cannot be attributed with mens rea in the absence of knowledge that the goods mentioned in the shipping bill did not reflect the truth of consignment sought to be exported. 5.1 Per contra, Ld. Authorized Representative Shri R. Rajaraman (Assistant Commissioner) has submitted that the appellant has not only filed the shipping bill on behalf of M/s. Artisan's Welfare Society, Villupuram, but also filed shipping bills twice for past exports for the same person and has also filed shipping bills for M/s. Sree Ragav Exports, Pachampalayam and M/s. R.J. Associates, Coimbatore, which were involved in export of Red Sanders and also mis-declaration and over-valuation of garments and that the appellant-CHA used to sign documents without verifying the exporter or its credentials; even in the present case of attempted illegal export of Red Sanders wood, the appellant has accepted the documents from M/s. Desire Global Log ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... characteristics: First, it must be a step toward a punishable offence; second, it must be apparently (but not necessarily in reality) adapted to the purpose intended; third, it must come dangerously near to success; fourth, it must not succeed. In this appeal, M/s. Artisan's Welfare Society, by its unsuccessful attempt to export prohibited Red Sanders wood pillars and pillar tops, have rendered these goods liable for confiscation under Section 113 (d) of the Customs Act, 1962. 9.1 In terms of provisions of Section 114 (i), any person who in relation to any goods has done or omitted to do any act which renders such goods liable to confiscation, or abets the doing or omission of such an act, shall be liable to a penalty not exceeding three times the value of the goods involved. In this case, it is conclusively proved that the exporter, M/s. Artisan's Welfare Society, has made an unsuccessful attempt to export Red Sanders wood pillar tops / pillars in contravention of the customs Act, 1962, the Foreign Trade (Development and Regulation) Act, 1992, the ITC (HS) Schedule 2 and also in contravention of the provisions of the Convention on International Trade in Endangered Species of Wild ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty is not imposable under Section 114 of the Customs Act where the CHA has abetted or facilitated an illegal export or import contravening various provisions of the Customs Act, 1962. 12. As clear from various judicial precedents, mens rea is not an ingredient of Section 114 of the Customs Act. Mere contravention of the provisions of the Customs Act and the regulations thereunder justifies the imposition of penalty under Section 114 ibid. 12.1 In the case of Nandu Raghunath Shinde v. Commissioner of Customs (Exports), Nhava Sheva [2015 (317) E.L.T. 525 (Tri. - Mum.)], the co-ordinate Bench of the CESTAT at Mumbai had an occasion to analyse a similar case, wherein it was held as under: - "8. The appellants have relied on the case of P.D. "Manjrekar (supra) as well as other cases to justify their contention that for imposition of penalty under Section 114, Revenue has to prove knowledge on the part of the assessee regarding the incident of export of banned goods. Section 114 is reproduced below for ready reference : "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 rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the time of storage till the time the goods are moved, arrive at the gateway port or other Customs areas/equivalent and are cleared for export. The submission of the learned counsel for the appellant is to the effect that mens rea is necessary to attract the provisions of Section 114 to the transaction. The Tribunal, on the other hand, proceeds on the basis that the existence of mens rea is not an essential ingredient to establish contravention of a civil law, placing reliance on the judgments of the Supreme Court in the case of Chairman, SEBI v. Shriram Mutual Fund - 2006 (5) S.C.C. 361 and Pine Chemicals Suppliers v. Collector of Customs, followed and applied by this Court in Commissioner of Customs (Export), Chennai-I v. Bansal Industries [2007 (207) E.L.T. 346]." 13. In view of the above, we hold that the appellant has acted or omitted to do an act, resulting in rendering the exported goods liable for confiscation, thus attracting the provisions of Section 114 (i) of the Customs Act, 1962. So, penalty is imposable for his acts of omission or commission, may be deliberate or negligent. His conduct aided and facilitated the illegal attempted export of Red Sanders wood pillars ..... X X X X Extracts X X X X X X X X Extracts X X X X
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