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TMI Blog2023 (11) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... e stuffing of red sander in the container he was in Mumbai and after returning from their next day itself he informed the customs authorities. The act of the appellant was not found malafide by the Learned Commissioner (Appeals) in his order. The learned Commissioner (Appeals) accepting that the appellant did not have direct involvement in the illegal export of prohibited good red sander reduced the penalty substantially - once the Commissioner (Appeals) is of the view that the appellant have no direct involvement, the penalty even reduced cannot be upheld. In an appeal against the Commissioner (appeals) order this Tribunal set aside the penalty in KARAN BABUBHAI CHAUHAN VERSUS C.C. MUNDRA [ 2023 (5) TMI 1267 - CESTAT AHMEDABAD] where it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basins filed by the appellant. It was alleged against the appellant that they have not taken immediate action to inform the customs authorities regarding knowledge of red sander being stuffed in the containers therefore, they are liable for penalties. Against the Order-In-Original the appellant filed appeal before the Commissioner (Appeals) who vide impugned order reduced the penalty to Rs. 3 Lacs and 1 Lac respectively against M/s. MSK Shipping& Logistics Pvt Ltd and Rs. 3 Lacs and Rs. 1 Lac against Rajesh Khimani.Therefore, the present appeal filed by the appellants. 2. Shri Sanjay Kalra, Learned Advocate appearing on behalf of the Appellants submits that the appellants were not aware of smugglings of red sander. They were appointed as C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and informed only on the next day. In this regard we find that the appellant has given a statement that in the evening when he knew about the stuffing of red sander in the container he was in Mumbai and after returning from their next day itself heinformed the customs authorities. The act of the appellant was not found malafide by the Learned Commissioner (Appeals) in his order. The relevant para of the Commissioner (Appeals) order is reproduced below: - "6. The appellants, on the other hand had contended that, though they were made notice in the subject show cause notice, the directors of M/s MSK Shipping and Logistics Pvt Ltd was never questioned or called for statement before the investigating agency and it implied that the investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CB took due diligence in getting export documents like export invoice, packing list. BL etc with duly issued factory stuffing permission and there is no incriminating statement or documentary evidence against Shri Rajesh Khimani or the Customs Broker. The appellants have also contended that the show cause notice did not whisper about any ulterior motive or knowledge or any act of commission or omission or even abetment. In view of the above, there is no evidence of direct involvement of appellants. However, at the same time the facts remains that the goods and the container in which the goods were stuffed were used for the attempt to illegally export the prohibited red sanders and when Shri Rajesh Khimam did know about the concealment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (appeals) order this Tribunal set aside the penalty vide order No. A/11130/2023 dated 01.05.2023. The said order is reproduced below:- "4. I have carefully considered the submission made by both sides and perused the records. The penalties were imposed only on the ground that the appellant after knowing about the illegal export of prohibited red sander has failed to inform to the authorities about the same. From the fact, I find that the appellant was absolutely unaware about the concealment of prohibited goods in the container for export. His job is to provide the empty container to the exporter. Therefore, as admitted by the Learned Commissioner (Appeals) he had no ulterior motive or knowledge for any act of commission or omission th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as clearly held that the appellant had no knowledge about any of the act which make the goods liable to confiscation. Despite his clear finding he upheld the reduced penalty. 5. As per my above discussion and finding I do not see any reason or role of the appellant to attract penalties under Section 114 (i) and Section 114 (AA). Accordingly, the penalties are set aside. Appeal is allowed." 4.3 From the above decision it can be seen that identical facts and same allegation was made against the appellant in the above decision and the Tribunal has set aside the penalties. We are therefore of the view that in the present case also the appellants being identically placed as appellant in the above decision the penalty are not sustainable. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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