TaxTMI 
TaxTMI 
2017 (7) TMI 830
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....nvestigation intercepted to the container No.HDMU 2388598 loaded into the trailer bearing registration No. TN-06-8656 while it was in transit to Chennai Port. Upon examination of the said container, 281 nos. of red sanders log totally weighing 5.560 MT with aggregate value of Rs. 2,50,20,00/- were found therefrom which were concealed under the declared cargo of magnesium sulphate and were attempted to be exported in contravention of Customs law and Foreign Trade Policy, 2009-14. Export thereof being prohibited, those were seized and confiscated under Section 113(d), 113(h) and 113(k) of the Customs Act, 1962 (hereinafter referred to as "the Act") So also 215 bags of magnesium sulphate concealing the offending goods found from the container valued at Rs. 1,67,281/- were seized and confiscated under section 119 of the Customs Act, 1962. The container valued at Rs. 75,000/-, used for smuggling of red sanders logs was also seized and confiscated. 2.2 When investigation found that the container was tampered without disturbing the liner & customs seal, S/Shri Sundaramoorthy, Gnanaprakash and Vijaykumar Lalji were examined. They revealed that the container was tampered and red sanders ....
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....pting export thereof concealing the same under exportable consignment in the name of above said consignor misusing their IEC. Shri Hemadri approached Shri Sundara Moorthy of G. Masilamani CHA, to provide CHA service for clearance of the offending goods giving them the export documents which were in the name of the IEC holder M/s. A.S.P. Senna Traders. 7. According to the investigation and the authorities below, M/s. T. Shanmuga Sundaram, CHA and M/s. G. Masilamani, CHA, aided and abetted Shri Hemadri allowing their firm name to be used by the smugaling racket to export red sanders in the guise of aforesaid exportable goods. The appellants were found by investigation to have been involved in the attempted export of red sanders violating law of Customs and Export Policy misusing the IEC of M/s. A.S.P. Senna Traders, Kutch, Gujarat unauthorisedly for which they faced adjudication consequences. 8. Shri S Murugappan, learned Counsel arguing on behalf of all the appellants submitted that none of them were at all involved in the attempted export of red sanders. Adjudicating authority without appreciating that the appellants were neither facilitator nor aided or abetted attempted smu....
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....oyee was an offence. But they knowingly entered into the illegal venture of attempting to export red sander. Their unlawful act not only binds them but also the entire racket who acted deliberately to defraud customs. Therefore, they should be penalised when they all acted malafjde proving their illegal intent to unduly enrich themselves at the cost of Customs. They were penalised to the following extent: Appellant Amount of penalty Imposed 1. G. Masilamani, CHA And proprietor of M/ s. Transquare Clearing & Forwarding Rs.10,00/000/- 2. V. Sundaramoorthy Rs.5,00,000/- 3. M P. Ashok Kumar Rs.2,00,000/- 4. T. Shanmuga Sundaram Rs.10,00,000/- 11. Heard both sides and perused the records. 12. Investigation found that one Shri P. Ashok Kumar (employees of Dravidian Logistics) knew Shri Hemadri, since both were residing in the same locality. When the mastermind Hemadri approached M/s Dravidian Logistics for clearance of the offending goods P. Ashok Kumar introduced him to Shri Sundara Moorthy employee of M/s. G. Masilamani, CHA for clearance of the export since M/s Dravidian Logistics was not engaged in such work. 13. When investigation examined Shri....
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....ision. 17.2 Appellant further relied on the decision of the Hon'ble High Court of Madras in the case of CC, Tuticorin v. Moriks Shipping & trading (P) Ltd. - 2015 (317) ELT 3 (Mad.) to submit that penalty is not imposable when there is no involvement of the appellant. Appellant failed to make any gain out of this judgment when it did not come out with the clean hands detaching itself from the commitment of offence. 17.3 Appellant also relied on the decision of the Hon'ble High Court of Madras in the case of CC (Exports), Chennai v. I. Sahaya Eddin Prabhu - 2015 (320) ELT 264 (Mad.) to submit that in the absence of positive role in the smuggling, there cannot be penalty. But appellant's role was avidly clear, that perpetuated smuggling, having lent his licence. He has to face to consequence of misuse of such CHA licence to carry out the smuggling. Therefore appellant shall not get any benefit out of this judgment since it had hand-in-glove in smuggling. 18. Evidence came to record to show that red sanders attempted to be exported by the racket of smugglers involving all the appellants concealing that under the goods declared as magnesium sulphate. The evidence gathered ....