2023 (8) TMI 65

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....e charges levelled against him and from imposing penalty under sec. 114 and 114AA of the Customs Act, 1962. 2. Brief facts of the case are that an attempt was made to smuggle out red sanders in the guise of 'General Merchant (Idly Rice, Atta in bags)' vide shipping bill dated 30.5.2018 filed by M/s. Triway Forwarders Pvt. Ltd. in the name of exporters M/s. Zeeya Enterprises, Sivagangai. Based on specific intelligence, DRI seized 12.42 MTs of red sanders valued at Rs.5.89 crores from containers covered under the shipping bill. In this regard, investigations conducted revealed an elaborate conspiracy to smuggle out red sanders logs. Accordingly, Show Cause Notices were issued to the persons involved in the transaction. The adjudicating aut....

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....ct penalty action under sec. 114 and 114AA of the Customs Act, 1962. The Show Cause Notice issued to Customs Broker in this case under CBLR to revoke their license for violation of Regulation 11(n) has been dropped by the jurisdictional Commissioner. The department is legally and factually wrong to contend that mens rea is not required to impose penalty under sec. 114 and 114AA. She submitted that to impose penalty under sec. 114, as an abettor of the main offence, mens rea on the part of the respondent has to be established whereas the investigation has not established any positive role or mens rea on the part of the respondent in the attempted smuggling. Similarly, to impose penalty under section 114AA, department has to establish that th....

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....verify with the shipper had led to confiscation of the red sanders under section 113 of the Customs Act, 1962 thereby rendering themselves liable for penalty under section 114 and 114AA of the Customs Act, 1962." 7.1 I find that The Hon'ble Tribunal in the case of Thawerdas Wadhoomal Vs. Commr. Of Cus. (General), Mumbai reported in 2008 (221) ELT 252 (Tri-Mumbai) has held that the CHA is not supposed to look into details of genuineness of the importer when IEC is produced by the importer. It is seen that documents required as per the KYC are basically issued by government authorities and agencies and the presumption is that the details like name, address etc shown there in are true. The department has not alleged that these documents sub....