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TMI Blog2024 (10) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Sandeep, Inspector Customs examined the containers after opening it at that time only feldspar powder was found. Therefore, he was of bona fide belief that the goods stuffed in the containers is feldspar powder. In the normal course it cannot be expected by any one that behind the feldspar powder bags some other goods are concealed. Therefore, there are no involvement of the appellant in the abetment in smuggling of Red Sander. Accordingly, the penalty under Section 114(i) of Customs Act, 1962 was wrongly imposed on the appellant - It is also observed that it is not coming out from record that the appellant was aware of the stuffing of red sander in the container. Therefore, even if some negligence has occurred on his part which is not established, the appellant cannot be charged for aiding or abetting the smuggling of red sander . Penalty u/s 114(AA) of CA - HELD THAT:- It is found that the appellant had not signed or submitted any document before customs with a prior knowledge about alleged mis-declaration, neither any show cause nor impugned order pointed out any specific documents were made or signed before the customs. Therefore, the appellant is not liable to penalty unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not expected from anyone to know about the concealment of the red sander under the bags of feldspar powder. He submits that even when Shri Sandeep, Inspector Custom examined the containers after opening it was found feldspar powder only. Therefore, he was of bona-fide belief that goods stuffed in containers is feldspar powder. It cannot be expected from the appellant that he has knowledge of concealment of red sanders. Therefore, the penalty is not imposable on the appellant. He placed reliance on the following judgments and board circular:- Hon'ble High Court of Calcutta in the case of - Eureasian Equipment and Chemicals Ltd., Ors., versus Collector of Customs Ors., reported at 1980 (6) ELT 38 (Cal.) Circular No. 6/2002 - Cus., dated 23/01/2002 issued from F. No. 450/126/98-Cus. IV Neptune's Cargo Movers Pvt. Ltd., versus Commr. of Cus. (Export), Chennai reported at 2007 (219) ELT 673 (Tri. Chennai) Success Engineering versus Commissioner of Customs, Kandla reported at 2007(215)ELT 220 Tri. Ahmd Sanco Trans Limited versus Collector of Customs, Bangalore reported at 1996 (83) ELT 557 (Tribunal) Commissioner of Customs, Bangalore versus M. Naushad reported at 2007 (210) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s declared goods for any monetary gain or otherwise. Therefore , the appellant is not responsible for rendering the goods liable for confiscation under section 113. Consequently he is not liable for penalty under section 114 (i) of Customs Act,1962. 2.5 As regard the penalty under Section 114 AA of Customs Act, 1962, he submits that the appellant had not made ,signed or submitted any documents before customs with the prior knowledge about alleged mis declaration neither any show cause notice nor impugned order would pinpoint any specific documents were made or signed before the customs which he knew was false or incorrect. Therefore, the appellant is not liable to penalty under the provisions of Section 114 AA. He also submits that the appellant is a small employee and get a salary of Rs. 30,000 per month with a custom broker at a material time and the adjudicating authority imposed cumulative penalty of Rs. 80,00,000 Rs. 20 Lakh under Section 114 (i) and Rs. 60 Lakh under section 114 (AA) which is beyond the means of appellant. He submits that the quantum of penalty is extremely harassed and not in commensurate with the alleged offence. 3. Shri R.K Agarwal, Learned Superintendent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whether the violation of the prohibition or restriction imposed under Section 11 of the Customs Act will attract the provisions of Sections 113 and 114 of the Act in a case where goods had already been exported. The answer to this question will depend on proper construction of the relevant provisions of the Customs Act and of the provisions contained in Section 113 in particular. Section 113 lays down conditions when export goods become liable to confiscation. It makes provision as to under what circumstances export goods incur the liability to confiscation. Section 113 does not deal with actual confiscation of the goods or the physical possibility of confiscation thereof. It only provides that export goods shall be liable to confiscation if any of the conditions stipulated in Section 113 are satisfied. In other words, it makes provisions as to the incurring of liability to confiscation of the export goods . Section 113(d) makes it clear that export goods shall incur the liability to confiscation if the goods are attempted to be exported contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force. Export goods as defined in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scation is so extinguished or wiped out. lt may be noticed that this liability to confiscation attaches to the goods at the time the goods are sought to be exported contrary to prohibition and at that point of time the goods which are to be taken out of India to a place outside India have not been taken out of India to a place outside India. In other words at the point of time when the liability to confiscation accrues the goods are export goods well within the meaning of the definition of export goods in Section 2(19) of the Act. In our opinion, this appears to be the proper interpretation of Sections 113 and 114 of the Customs Act, applying the well settled principles of construing the said Sections with reference to the language therein. This interpretation further appears to be in accord with the objects for which this particular legislation has been enacted by the Parliament. In view of the facts related to the appellant Shri Sandeep and with support of the judgment as referred above, we are of the view that the appellant is not liable for penalty under Section 114(i) of Customs Act, 1962. Hence, penalty is set aside. 6. As regard the other appellant Shri Rhul Mishra, he was w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the adjudicating authority has not taken pain to cross-examine him before admitting his statement as evidence. Therefore, the entire case made on the basis of his incrementing statement which cannot be accepted as evidential value in the absence of his cross-examination as mandated under Section 138(B) the entire case fails. It is also fact on record, there was nothing brought on record to establish that the appellant had monitory gain out of the smuggling of red sander. It is also observed that it is not coming out from record that the appellant was aware of the stuffing of red sander in the container. Therefore, even if some negligence has occurred on his part which is not established, the appellant cannot be charged for aiding or abetting the smuggling of red sander . 6.3 As regard the penalty under Section 114(AA) of the Customs Act, 1962, we find that the appellant had not signed or submitted any document before customs with a prior knowledge about alleged mis-declaration, neither any show cause nor impugned order pointed out any specific documents were made or signed before the customs. Therefore, in our view the appellant is not liable to penalty under the provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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