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TMI Blog2024 (2) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... therein. There is nothing to impute by way of a categorical assertion the conspiring of, or an express omission or commission, leading to the fraud on the part of the appellant. There is nothing in the findings of the learned Commissioner to assert a positive role or to impute abetment on the part of the appellant in the attempt to smuggle out Red Sander Wood. Thus, in view of anything specific on the part of the appellant being brought on record, it would be completely inappropriate to subject the appellant to penal provisions under Section 114(i) - in order to take penal action against the present appellant, a partner of the Customs Brokerage firm, it is necessary in law to show that the appellant had in any way connived in the substitution of the declared cargo, or was in the knowledge of the fact that the declared cargo loaded in the container was substituted with prohibited goods. There is no such finding by the adjudicating authority in the matter. It is on record that the bottle seals were intact when the goods were subjected to examination in the docks. Further, the container was factory sealed, where the Customs Broker had no role to play. It be noted that in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned adjudicating authority. 3. The subject show cause notice has been adjudicated confirming a penalty of Rs. ten lakh on the appellant as stated supra, and reiterating and confirming the earlier order No. Kol/Cus/Commissioner (Port)/54/Adjn./2018 dated 29.06.2018. It would be interesting to point out for records that the said issue had earlier been adjudicated by the Commissioner of Customs (Port), whereupon penalties were imposed on various noticees, including the appellant and the seized goods ordered to be confiscated. Subsequently, the appellant had filed a petition bearing No. 420/2018 before Hon ble High Court of Calcutta, praying for cross-examination of the other noticees. The present adjudication is a culmination of the said process, affording crossexamination as requested by the appellant. In the case before us, the question of non-adherence to principles of natural justice is no longer in question. As also noted in the adjudication order, opportunity of crossexamination was afforded to the appellant and at this juncture no grudge is raised thereto. 4. The appellant have submitted that vide this Tribunals Order No. FO/77031/2019 in Customs Appeal No. 79329 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y processed the documents and filed S/Bill on the basis of Letter of Authorisation signed by P. Moitra, Manager and Authorised Signatory of M/s. Panel Pin Mfg Co. Pvt. Ltd. and other documents like KYC, PAN, IEC, Bank details duly signed by the Director of Export Co. iv) During investigation statements of T.K. Saha, Assistant Commissioner and P. Bala, Inspector, who sealed the container were not recorded by DRI. As such the DRI is not justified in involving M/s. Mallick Clearing Agency, CB, for omission and commission and M/s. Mallick Clearing Agency, CB, is not liable for penal action under Section 112(a) and (b) of Customs Act, 1962 as proposed in the Show Cause Notice. 10.1. As I have already held in my adjudication order in this case dated 29.06.2018 that the exporter M/s. Panel Pin Manufacturing Company Ltd. did not act properly as a exporter as they dealt with dubious middlemen and agents like Sandip Ghosh even without knowing about their antecedents. They obtained their IEC for making the subject exports for the first time ever in this manner. They did not procure the export order directly having had no contact with the foreign buyer. These are said very clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter as it should have been. Sourendra Nath Mallick admitted that he had never seen the exporter before or had any contact with the exporter earlier. These acts of the CB made it possible for such smuggling attempt to take place in the first place. There have been similar cases of smuggling of Red Sanders by adopting same modus operandi involving other exporters and which is known to the trade. Being in the business of clearing/forwarding of export/import Sourendra Nath Mallick, Partner of M/s. Mallick Clearing Agency should have been alert to such possibilities. The present consignment too would have met the same fate had the same been not intercepted by the DRI. CB, therefore, cannot escape the consequence associated with such attempted export of prohibited goods on the stated ground of purported innocence, lack of mala-fide intention, etc. For invoking Section 114(i) of the Customs Act, 1962, knowledge, complicity, mala-fide intention etc. are not important prerequisites. Even if, the question of knowledge is to be taken into account it is well known in the trade that fictitious/non - existent/unaware exporters have been involved in effecting/attempting various kinds of smugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty therein. 8. We note that in the aforesaid findings of the learned Commissioner there is nothing to impute by way of a categorical assertion the conspiring of, or an express omission or commission, leading to the fraud on the part of the appellant. There is nothing in the findings of the learned Commissioner to assert a positive role or to impute abetment on the part of the appellant in the attempt to smuggle out Red Sander Wood. Thus, in view of anything specific on the part of the appellant being brought on record, it would be completely inappropriate to subject the appellant to penal provisions under Section 114(i). Further, the order of the learned adjudicating authority, fails to show that the appellant had in effect supplemented the efforts to smuggle out Red Sander wood. For any failure of nonperformance of the obligation under the CBLR, appropriate orders have already been passed by this Tribunal and referred to in para 4 above. Thus, in order to take penal action against the present appellant, a partner of the Customs Brokerage firm, it is necessary in law to show that the appellant had in any way connived in the substitution of the declared cargo, or was in the kno ..... 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