TaxTMI 
TaxTMI 
2018 (9) TMI 399
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.... of the Customs Act, 1962 (hereinafter referred to as the Act). In the said show cause notice, there were eight noticees, of which, the appellant in CMA.No.1901 of 2018 is the third noticee, the appellant in CMA.No.1902 of 2018 is the fourth noticee and the appellant in CMA.No.1903 of 2018 is the fifth noticee. The allegation pertains to smuggling of red sanders under the cover of magnesium sulphate in HDPE bags. The said show cause notice proposed imposition of penalty on all the three appellants under Section 114 of the Act. 3. The appellants submitted their replies dated 11.2.2015, 09.4.2015 and 11.2.2015 respectively. After considering the said replies and affording an opportunity of personal hearing, during which, the appellants were represented by their respective authorized representatives/advocates, the Commissioner of Customs, Chennai-IV, by an Order-in-Original dated 29.5.2015, confirmed the proposals in the said show cause notice and imposed penalty of Rs. 10 lakhs on the said Mr.G.Masilamani, proprietor of M/s.G.Masilamani, Customs House Agent (CHA), Rs. 5 lakhs on the said M/s.Transquare Clearing and Forwarding and Rs. 10 lakhs on the said Mr.V.Sundaramoorthy, apart....
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....mon order passed by the Tribunal is wholly unsustainable. It is further submitted that the Tribunal did not consider the grounds raised by the appellants and merely based on assumptions and presumptions, the Tribunal confirmed the findings of the Commissioner of Customs. According to the learned counsel, the Tribunal failed to take note of the important fact that there is no material evidence to connect the appellants with the smuggling activity. It is also submitted that there is no scope for imposing penalty under Section 114 of the Act in the absence of any knowledge and specific role on the part of the appellants in the offence alleged to have been committed by some other person. Thus, in the absence of any evidence to hold the appellants had knowledge or actively participated in the attempted export of red sander logs, the Tribunal fell in error in holding that the appellants had abetted the offence. 7. In support of his contention, the learned counsel for the appellants has placed reliance on the decisions of two Hon'ble Division Benches of this Court in the case of Commissioner of Customs (Exports) Vs. I.Sahaya Edin Prabhu [reported in (2015) 320 ELT 264] and in the c....
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....tal endorsement 'no such addressee', after which, the officials of the DRI carried out an inspection at the said address and reported that no such address existed in Chennai-79. 13. After considering the reply given by the appellants, the Commissioner of Customs, in our considered view, had done a thorough factual exercise to ascertain the culpability of the appellants in the transaction. The Commissioner of Customs noted that the said Mr.V. Sundaramoorthy and the said Mr.Hemadri entered into a conspiracy and arranged a genuine export consignment to smuggle red sander logs out of India through the said consignment, for which, the said Mr.Hemadri approached the said Mr.V.Sundaramoorthy of the said M/s.G.Masilamani, CHA for carrying out the work of clearance in Chennai and had given them all the documents, which were in the name of the said M/s.A.S.P.Senna Traders namely the IEC holder. It was further noted from the surveyor's report that the container was tampered without disturbing the liner and the customs seal and a part of the declared cargo was de-stuffed and replaced with red sanders. It was also noted that when the said M/s.A.S.P.Senna Traders were contacted du....
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....randi with oblique motive to make undue gain at the cost of the Customs. It was also fund that incidence of seizure of red sanders by the investigation brought out the role of the smuggling racket, of which, the appellants were members, that the plea of the appellants that they were innocent was rejected for having not brought out the illegal act of the said Mr.Hemadri to the knowledge of the Customs and that instead of doing so, all of them had concerted effort to deceive the Customs and the so called exporter disowned the consignment, which was attempted to be exported. Thus, the Tribunal concluded that the appellants acted in connivance with the racket till the offending container was seized by the investigation resulting in the discovery of smuggled goods and that they could not lead any evidence to prove their detachment to the attempted export of the offending goods. 17. In our considered view, there was abundant evidence available, which was considered by the Original Authority and a finding has been rendered as to the complexity and the modus operandi adopted by the appellants for the purpose of illegal export of red sanders. 18. In the decision in I.Sahaya Edin Prabh....