9911796707
TMI Blog2024 (2) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted and where have the substituted goods gone. Main culprits are still at large. 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 incomplete investigation coupled with all above narrative does not justify imputation of malafide and penalties under Section 114 (i) and Section 114AA. The reasoning of the Commissioner to that extent is not well founded for the imposition of penalties which require malafide and unconditional knowledge of offending goods. Department has failed to point out as to how sealing process was found to be lacking and that engaging of any transportation is not an option available to exporter of goods in sealed container. A onetime engagement of a transporter does not make him an employee, even otherwise. Employer cannot be held responsible for penalty under Section 117, as held in SHRI AMIT RAJKUMAR SINGHANIA, SHRI JITU SHARAD SHIRSAT, ANJANA NILESH JADHAV, SHRI MANISH DHIRAJLAL BAROT, M/S. CHITALIA LOGISTICS P. LTD., SH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order for inadequate penalties. 2. M/s. Sanyo Ceramics, Morbi is a partnership firm engaged in manufacture of sanitary ware had filed 02 shipping bills (SB No. 5692328 dated 20.06.2018 for container No. DFSU 2147308 and 5571343 dated 14.06.2018 for container No. PCIU 1223252, both filed under MEIS scheme) with Custom House, Mundra for export of Ceramic Sanitary ware Washbasin to UAE and Vietnam respectively. 3. DRI apprehended both the containers at Mundra port and found red sanders logs (which is prohibited for export from India) stuffed inside. 4. Shri Meghjibhai Jetpariya, Partner of M/s. Sanyo, inter alia, stated before DRI that he had agreed to export ceramic sanitary ware at the instance of one Shri Deepakbhai Kotak, who had visited their factory and requested to supply the same to his nephew who was based in UAE; that he agreed to file the Shipping Bills in the name of his partnership firm M/s. Sanyo believing the version of Shri Deepakbhai Kotak that he did not have IEC and allowed Shri Deepakbhai Kotak to appoint Custom House Agent, transporter and shipping line, under a bona fide belieľ that they would get more business. 5. Shri Kantilal Jetpariya, the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners of the firm, are identical. The adjudicating authority also had not given any findings about the direct involvement of the three appellants. Moreover, 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 completely from the penalty provisions provided in the statute. In view of the above, the penalties under Section 114(i) and under Section 114AA need to be reduced on each of the appellants to meet the ends of the justice... 10. Feeling aggrieved by the order, appellant parties have filed prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice was prepared for him to the forwarded to his nephew in Dubai. As per the terms, the Logistic Company M/s. DSK Logistics was chosen by Shri. Deepakbhai for transportation and the CHA was allowed to be used by Shri. Meghijibhai as his own. The empty container came on 14.06.2018 and was loaded in the afternoon and thereafter loaded container after sealing as per RFID seal and taking photographs was allowed to move forward for export from factory around 6 pm on 14.06.2018 along with documents. Similarly, another container was stuffed and left on 20.06.2018. That payment from exporters were duly received through NEFT by them as exporters. It turned out Shri. Deepakbhai Kotak could not be traced and that he left without any trace, once he came to know that the container was intercepted by Customs department. Shri. Sanjay Sharma who was stated to be the kingpin in collusion with Shri. Deepakbhai was instrumental too made good his escape. Shri. Kuldeep was the transporter in the matter and was instrumental in diverting the trucks with loaded containers and replacing the declared goods with red senders. 14.1 It is Appellant-party s case, which is not disputed in the Order-In- Ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced 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 incomplete investigation coupled with all above narrative does not justify imputation of malafide and penalties under Section 114 (i) and Section 114AA. The reasoning of the Commissioner to that extent is not well founded for the imposition of penalties which require malafide and unconditional knowledge of offending goods. Department has failed to point out as to how sealing process was found to be lacking and that engaging of any transportation is not an option available to exporter of goods in sealed container. A onetime engagement of a transporter does not make him an employee, even otherwise. Employer cannot be held responsible for penalty under Section 117, as held in Amit Rajkumar Singhaniya Vs. Commissioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
