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2022 (10) TMI 708
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....raided rubber hydraulic hose'. The port of discharge declared was Shanghai, China and the overseas buyer declared in the shipping bill was M/s. Xiangtan Bai State Trade Co. Ltd. China. On examination it was found that the container was loaded with red sander wooden logs. After investigation, Show Cause Notice was issued to various persons including the appellant herein. After due process of law, the original authority vide Order in Original dated 31.5.2019 ordered for confiscation of the red sander logs and saw dust totalling to 11,750 MTs valued at Rs.5,28,75,000/-. However, he refrained from confiscation of the container and also refrained from imposing penalty on the appellant herein. Against this order, the department filed appeal befor....
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....s issued only to the appellant (freight forwarder), CHA and the CFS. Surprisingly, those persons who were the actual parties in the attempt to smuggle, have been not made party to the proceedings and they have not been issued any notice. Since there are no proceedings against the actual parties who committed the offence, the appellant cannot be charged the offence of abetting the attempt to export the red sanders. In the absence of prosecution of parties who have actually committed the offence, the allegation against this appellant is not sustainable. 3. In the Order in Original, it is clearly stated that the shipping bill was field by M/s. Polyhose India (Rubber) Pvt. Ltd. and the seals were intact when the DRI examined the container. H....
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....e facts narrated above, it can be seen that the adjudicating authority had absolved the appellant from imposing penalty. The discussion made by the adjudicating authority in regard to reason for non-imposition of any penalty is as under:- "I find there is force in the argument of the advocate to the extent there was nothing on record to show that Shri Jagadeesan had wilfully abetted the illegal export of red sanders in this case. I observe that though he was the contact point for Shri Sabarivasan in this case, h is role is limited only to arranging empty container for the declared export goods and referring the customs documentation filing work to the customs broker M/s. Behog Overseas. Considering the fact that the transportation ....
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.... Pennashin Shipping India Pvt. Ltd., Freight Forwarders is set aside and the case is remanded back to the adjudicating authority for consideration of modification of the impugned Order in Original to the extent of non-imposition of penalty under sec. 114 of the Customs Act, 1962 on M/s. Penanshin Shipping India Pvt. Ltd., Freight Forwarders and pass appropriate orders as deemed fit within 30 days of receipt of this order." 9. The facts reveal that one Shri S. Sabarivasan approached Shri S. Jagadeesan of M/s. Penanshin Shipping India Pvt. Ltd. (appellant herein) by introducing himself as the proprietor of M/s. Om Logistics. The said Sabarivasan had arranged for the export consignment in the name of M/s. Polyhose India (Rubber) Pvt. Ltd. H....
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....vidences, it appeared to the department that it was a well hatched plan for smuggling red sanders. The attempt was to export the red sanders in the guise of wire braided rubber hydraulic hose in the name of M/s. Polyhose India (Rubber) Pvt. Ltd. 10. On perusal of the impugned order, it is seen that after appreciating the facts, the Commissioner (Appeals) has noted that one consignment was already cleared and this was the second consignment that was intercepted by the DRI. She has taken a view that it is obvious that the appellant has abetted Shri Sabarivasan and his aides in misusing the IEC of M/s. Polyhose India (Rubber) Pvt. Ltd. and therefore is liable for penalty under sec. 114 of the Customs Act, 1962. 11. Interestingly, though ....