TaxTMI 
TaxTMI 
2023 (11) TMI 622
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....ed goods in container No. GATU8007720 covered under Shipping Bill No. 1715647 dated 26.10.2020 filed at the custom House, MP & SEZ, Mundra, consigned to M/s. Batik Emporium General Trading (LLC), Dubai, UAE declaring goods as wafer, cumin seed, far far, roasted matti and mamra. The container was shipped on the vessel MV Kanivu voyage - 827W on 30.10.2010 scheduled to reach Jabel Ali on 03.11.2010, however, on 01.11.2010 officers of DRI directed the container liner agent M/s. Trans Asian Shipping Services (P) Ltd to recall the container back to Mundra. The officers carried out search at the premises of appellant as well as forwarders firm, M/s. Bright Shipping at Mundra and CHA firm, M/s. Jayshree Clearing Forwarding and Shipping Agents Pvt Ltd. The exported container was received back on 20.11.2010 at MundraPort and upon opening, 387 logs of wood and 11.14 MTS of Food items viz. wafers, cumin seeds, Far Far, Roasted Matti, Mamra/Haldi Ram make Bakharwadi, Khata Meetha, Phalahari Chivda. Corn flakes mixture were found as per the panchnama dated 23.11.2010. The opinion of Forest Officers was sought and they opined that prima facie the logs were red sanders, a prohibited item; as per ....
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....ans Asian Shipping Services (P) Limited was recorded; it was interalia stated that Mr.Ranjit of M/s. Bright Shipping had booked 40' container for M/s. Hari Om International which was gated-in on 25.10.2010 by M/s. Bright Shipping, Bill of Lading (BL) was issued on 28.10.2010; that Trans Asia deal with about 5000 to 7000 containers, it was not possible for them to show correct tare weight of container in Bill of Lading, therefore there is difference of tare weight in BL dated 28.10.2010. vi. Statement of Shri MukeshMuljiRuparel, Director of Jayshree Clearing Forwarding and Shipping Agents Private Limited was recorded where he inter alia stated that Shipping Bills were filed by them and that exporter's forwarders, Shri Ranjit of M/s. Bright Shipping looked after the work of booking of containers, transportation, give documents for clearance of the shipping bill. vii. Statement dated 12.01.2011 of Shri Ranjit Ramakrishna Punapullai, partner of M/s. Bright Shipping, that he arranged for vehicle for transportation of the container from M/s. Monarch Movers which arrived on 22.10.2010 at around 9.30 PM at the Honeycomb CFS and it was stuffed on 23.10.2010; that shriNiles....
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....ulation) Rules, 1993 as export of logs of red sanders out of India is prohibited, food items with pro-rata FOB value of INR 2,13,167/- covered under Invoice No: 0M07/10-11 dated 23.10.2010 and BL No. TALTSG00767441 dated 28.10.2010 (Trans Asia Container Line) and Shipping Bill No. 1715647 dtd. 26.10.2010 (Custom House: MP & SEZ Mundra) totally weighing 11.14 MT seized from container No: GATU8007020 should not be confiscated under section 119 of the Customs Act 1962 as they were used to conceal logs of red sanders meant for smuggling, penalty should not be imposed on him under section 114 (i) of Customs Act, 1962 for smuggling of logs of red sanders out of India for the reasons given in the foregoing paras. (a) M/s. Jayshree Clearing Forwarding and Shipping Agency Private Limited of Mumbai, (b) Shri Mukesh Mulji Ruparel, the Director of CHA firm M/s. Jayshree Clearing Forwarding and Shipping Agency Private Limited of Mumbai (c) Shri Turk Faisal Abdul Mazid 'H' card holder of M/s. Jayshree Clearing Forwarding and Shipping Agency Private Limited of Mumbai, (d) Shri Kasam, Hamid Theba proprietor of M/s. Bright Shipping, Mundra and (e) Shri Ranjit Ramakrishna Punapullai@Ranjit Pillai of....
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....ary; there was no use of force upon him or that his signatures were obtained on blank paper; that container was admittedly carrying the same bottle seal which was originally placed at the premises when the goods were stuffed and that too without any damage or tampering and that investigation had conclusively established that Shri Nilesh Shiyani had maliciously taken advantage of the shortage of officers and other practical administrative problems of the department to chase his smuggling activities. He further held that when there was no question about identity of the goods, it is immaterial that recovery panchnamas had no detailed description about impugned goods and that questioning opinion dated 26.11.2010 of forest officers who were officially deputed by the Deputy Conservator of Forest with specific direction to carry out the subject verification is also not found to be based on acceptable grounds as no re-test of another set of samples was demanded by the appellant. 6. Shri. Saurin Ashok Shah, Learned Counsel appearing for the appellant assailed the Order of Commissioner of Customs (Appeals) Kandla on the following grounds : a) that no reliance could have been plac....
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....e but Red-Sanders and penalty imposed U/s. 114(i) of Customs Act is per se bad in law. c) that there is no conclusive or cogent evidence or material on record to indicate that 387 timber logs are Red Sanders; that the opinion of forest officer dated 26-11-2010 is not conclusive in nature but just a mere prima facie opinion and that no other material is placed on record whereby one can draw a final conclusion that the timber log is Red Sanders; that no reliance can be placed on additional documents viz. letter dated 05-09-2023 of Deputy Director of DRI regarding inventory and disposal of seized goods to justify 387 timber logs is Red Sanders for the reason of material discrepancy not only in the number of logs as well as in terms of weight of logs but also no material emerging on record about 11.40 MT food articles as well as sealing procedure while handing over the custody of logs and food articles; d) there is nothing on record to indicate as to where and when and by whom, the so-called 387 pieces of timber log came to be stuffed in container no. GATU 8007720 which was sealed in presence of Shri Devendra Singh - Inspector of Central Excise and in presence of Smt.....
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....ement of Ranjit that "Shri Nilesh Shiyani told him that subject container should not be called back at any cost" came to be recorded on 12-01-2011 i.e. after almost 72 days of the search carried out on 01-11-2010 at the office premises of forwarder firm - M/s. Bright Shipping at Mundra and various documents were recovered; that on that basis no assumption can be made that Shri Nilesh Shiyani had knowledge about the Red Sanders stuffed in the container and therefore he made such statement to Ranjit Pillai; that it would be too far-fetched to make such assumption that shri Nilesh Shiyani had knowledge about the Red Sanders stuffed in the container and therefore he made such statement to Ranjit Pillai; that assuming without admitting that such statement was made by Nilesh Shiyani then also no adverse inference can be drawn by making assumption that Shri Nilesh Shiyani had knowledge about the Red Sanders stuffed in the container and therefore he made such statement to Ranjit Pillai; that the container contained food product which had a very short shelf life and therefore Shri NileshShiyani would have been worried about the likelihood of loss that would be incurred if the container is c....
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....the adjudicating authority in terms of section 138B of the Act. At this juncture, it is observed that the possibility of substitution of cargo enroute the port or post entry into gate of port is not investigated;such possibilities cannot be ruled out particularly in view of tribunal decisions in which cases of substitution of cargo and double bottle seal used by the miscreants enroute is mentioned in the case of SHUVAM ENTERPRISE V. COMMR. OF CUS. (AIRPORT & ADMN.), KOLKATA2016 (344) E.L.T. 305 (Tri. - Kolkata), the relevant excerpt of which is as below: 2. Shri R.K. Choudhary (Advocate) and Shri B.N. Pal (Advocate) appeared on behalf of the appellant. Shri R.K. Choudhary argued that appellant had a valid CHA Licence under Customs House Agents Licensing Regulations, 2004 (CHALR). That appellant was engaged by a Nepali Exporter for shipment of 24 MT of Mustard Oil Cake (Khali) to be consigned to Hong Kong via South Africa. That two containers with the goods, duly inspected by the Customs Authorities at Jogbani, were bottle sealed by Nepalese Customs and forwarded to Kolkata for shipment. That CTD (Custom Transit Declaration) was filed by the appellant on the basis of docume....
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....2 (3) TMI 238 - CESTAT Mumbai and in the case of Maheshwari Rocks (I) Pvt Ltd - 2009 (10) TMI 803 - CESTAT Chennai. It is observed that miscreants looking for bonafide exporters for booking a container to load the red sanders from a regular exporter of low value food items to ensure smooth clearance is not unknown. This can be observed in para 4.2 of the former case, the finding of the adjudicating authority in that case is as below: 4.2 In the order in original Jt Commissioner has recorded the findings as follows: "10.1 The Noticees has contended that both the noticees i.e. M/s. Marathon Corporation, Mumbai and Shri NileshKatira one of the partners in M/s.Marathon Corporation had no role in the attempted export of prohibited goods and they didn't abet the act of Commission of Sanjay Pawar rendering the goods liable for confiscation, hence they are not liable for penal action under Section 114(i) of the Customs Act, 1962. I have gone through the present SCN and the reply submitted by the noticees and find that Sanjay Pawar is the main conspirator who hatched a criminal conspiracy to smuggle Red Sanders and he not only arranged the Red Sanders, but also managed....
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....cts and provisions made therein under and compliance thereof by an exporter/ importer. Despite being aware of these facts, he dealt with so called Sanjay Pawar in a very casual manner without taking into consideration the basics of the care and precautions any exporter/importer is required to exercise before making any deal. As a prudent businessman/exporter, he was required to know the credentials of the person he was dealing with. The failure on the part of Shri NileshKatira shows that he had taken his business too lightly and had also taken least care of the provisions of rule of land governing the exports. While he attempted to export the first consignment of Tomotoes to buyer linked with the Sanjay Pawar, he got the experience that overseas buyer or the Sanjay Pawar is not trust worthy. Despite that experience he went ahead in dealing with the said Sanjay Pawar for further exports and in this dealing also, the amount agreed was not received by him in advance as agreed upon in spite of the repeat experience, he went ahead with future exports. Shri NileshKatira neither attempted to verify the credential of Sanjay Pawar nor of the overseas buyer named by Sanjay Pawar, despite of ....
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....;ble Supreme Court has observed: -It is well settled that a little difference in facts or additional facts may make a lot difference in the precedential value of a decision." 10.6 The Sanjay Pawar (absconder and still to be apprehended) is the main conspirator in organising the illegal attempted export of Red sanders of international value of Rs. 4.70 crores vide Shipping Bill No. 6196190 dated 01.03.2016 with his accomplices. The Summons under Section 108 of the Customs Act 1962 could not be issued to Yadav, the Driver as no addresses could be assigned to him. As regards transporter company M/s.Soham Transport, summons was issued but could not be served as it was not found existing on the given address. Since Sanjay Pawar is absconding and is yet to be apprehended, action against him is kept in abeyance. Whenever he and his accomplice are apprehended, their statement(s) will be recorded under Section 108 of the Customs Act, 1962 and used as evidence against him/them and/or any other person to initiate action under Customs Act 1962, Foreign Trade (Regulation) Rules 1993, and relevant provisions of Indian Forest Act 1927 and for violation of CITES convention." 8.2 Tribun....
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....mer agent's seal, both the appellants ceased to be responsible for its safe transport to the gateway port. The learned counsel representing the exporter invited our attention to Circular No. 57/98-Cus. Dated 4-8-98 issued by the Central Board of Excise & Customs where it has been clearly stated that in case the goods are moving from an ICD, the responsibility to account for the goods-intransit is that of the custodian, namely the ICD. The ld. Counsel for the appellants took us through the findings of the Commissioner as regards the roles of the appellants in the offending transactions. The Commissioner had not found any active or positive role on the part of the appellants in rendering the seized red sander logs liable for confiscation. Therefore, they pray that the predeposit of penalties may be waived and their recovery. 2. Ld. JDR reiterates the findings of the Commissioner. 3. We have carefully considered the submissions by the learned counsel for the parties. We observe from the impugned order that the Commissioner has found that the exporter had not behaved in a responsible and sensible manner. They had entrusted the export goods with two unknown persons S/S....
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....een examined by the customs in the ICD and the seals are put on the container. The appellant exporter is therefore not liable for substitution of the cargo during movement from ICD, Bangalore to Chennai port. 3. After hearing both sides, we find that the ICD has not been issued with a show cause notice and it is not known why Shri R. Baskaran and Shri Murali got access to the cargo enroute to Chennai when ICD, Bangalore as the custodian was supposed to be in charge of moving the cargo from ICD to gateway port. In the absence of any positive findings, regarding the involvement of the appellant exporter, we confirm our prima facie view, grant the benefit of doubt to him and set aside the penalty imposed on him. Appeal No. C/214/08 filed by the appellant exporter is allowed." 4.8 In view of the discussions as above I do not find any merits in the impugned order. 5.1 In view of the discussion as above I set aside the impugned order and allow the appeals filed by the appellants. 8.3 Apart from the fact that no investigation, on the possibility of substitution of cargo in the container enroute and use of double bottle seals, having been carried out; it can b....