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TMI Blog2024 (2) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... li , Superintendent ( AR ) for the Respondent ORDER SOMESH ARORA The three appeals by the Appellant-Parties have been made are as follows : Sl No Appeal No. Appellant Penal provision Section of Customs Act, 1962 Penalty imposed by Ld. Adjudicating Authority Penalty sustained by Ld. Commissioner (Appeals) 1. C/10056/2021 M/s. Sanyo Ceramics 114 (i) 50.00 lakh 3.00 lakh 114AA 50.00 lakh 3.00 lakh 117 1.0 lakh 0 2. C/10055/2021 Shri Meghijibhai Jetpariya, Partner 114 (i) 50.00 lakh 1.00 lakh 114 AA 50.00 lakh 1.00 lakh 3. C/10054/2021 Shri. Kantibhai Jetpariya, Partner 114 (i) 50.00 lakh 1.00 lakh 114 AA 50.00 lakh 1.00 lakh The department on the other hand has made three appeals seeking se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs that were stuffed with sanitary ware and self sealed in the factory of M/s. Sanyo were taken to a plot enroute Mundra port and declared goods were substituted by red sanders logs by Shri Deepak Kotak, Shri Rajendra Shah, Shri Devabhai Rabari and Shri Kuldeep 7. SCN was issued to M/s. Sanyo and their partners, namely, Shri Meghjibhai Jetpariya and Shri Kantilal Jetpariya proposing penalty under Section 114 and 114AA of Customs Act, 1962 the on the basis of allegations contained in the show cause notice and separate penalty under Section 117 was also proposed on M/s. Sanyo. 8. Ld. Adjudicating Authority imposed penalty on M/s. Sanyo under Section 114 (i) and 114AA on the strength of following findings:- "17.06 None of the partners of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at paragraph 9.2 and 9.3 of the show cause notice, it is clearly mentioned who were the culprits and ow they have diverted the trailer. In the circumstances, when the adjudicating authority could not establish direct involvement of the appellants in the alleged attempt to export red sanders, and also when the adjudicating authority could not state which specific condition of self-sealing permission that was not observed by the appellants, there is no justification for imposing such a huge penalty on the three appellants. However, at the same time, the fact 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 hence they cannot be absolved complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 was pleaded not tenable in the light of the fact that no clinching evidence was cited to satisfy the basic ingredients of Section 114AA, i.e. "knowingly or intentionally". On the contrary, penalty was imposed based on vague observations and findings and confirmed despite noting that involvement was not established. 12. Appellant party thus aggrieved has prayed to allow all the three appeals, with consequential relief. 13. As against this, department finding penalties having been inadequately imposed has in its appeals sought setting aside of the order-in-appeal in the light of grounds based primarily on finding in Order-In-Original. 14. We have considered the rival submissions and facts available on record M/s. SANYO CERAMIC is a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eplacing the declared goods with red senders. 14.1 It is Appellant-party's case, which is not disputed in the Order-In- Original that the sealed containers stuffed with declared goods had actually left the factory of the appellants and change of cargo enroute happened at a plot at the behest of Shri. Kuldeep. They are no incriminating or inculpatory statements as against M/s. SANYO CERAMIC, Shri. Meghijibhai Jetpariya and Shri. Kantibhai Jetpariya. The sustained penalties which have been considerably reduced by the Commissioner (Appeals) were imposed under Section 114(i) and 114AA. However the Commissioner (Appeals) while not attributing any involvement of the appellants firm and its partner or their knowledge has still upheld token penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainers would have gone to an empty plot, where all infrastructure to replace, (as per imputation in para 'T' of the show cause notice) was available. If M/s. SANYO CERAMIC and its partners were conniving in such offending goods, they would have in all probability introduced such goods in the container in their factory premises only. The factum of all genuine exports in the past by M/s. SANYO CERAMIC supports the view that they were victim of the fraud. Exporters earning precious foreign exchange cannot be allowed to be victimised and still further penalised. The lack of knowledge brought on record by the Commissioner (Appeals) in his findings is supported in evidence not only by various statements but also circumstantial evidence. The inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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