TaxTMI 
TaxTMI 
2025 (7) TMI 92
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....Terminal, PSA, Chennai Port Trust. The container was found to have been stuffed at M/s. A.S. Shipping Agencies Pvt Ltd, CFS, Numbal and sealed with liner seal and customs seal and was transported by trailer bearing No. TN-04-F-5137 from the CFS to Port. During preliminary examination, the container was found to be sealed with customs and liner seals and on opening the container it was found stacked with red coloured wooden logs which were seized under mahazar on reasonable belief that they were Red Sander logs. During investigation, on physical examination of the container, one hatch where the customs seal is normally placed, seemed to be odd and appeared to have been replaced with original ones and further the rivets relating to the said hatch on the back side did not contain the caulking agent which were available on the other hatches. The commodity declared in the subject shipping bill viz. Ragi was found scatted on the floor of the container and other than the said quantity of red sander logs and the scattered Ragi nothing else was found in the container. In the course of investigation, statements were taken from Shri. M. Dhanraj, the Proprietor of the CHA M/s. Transport L....
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....ion by the appellant in the smuggling attempt by A.I Enterprises. For levy of penalty under Section 114 of Customs Act, conscious knowledge on the part of the individual is necessary about the smuggling activities and the statement dated 27.02.2012 of the appellant under Section 108 of the Customs Act has not been contradicted with any contrary evidence. It is the submission of the Ld. Counsel that mere forwarding of the documents and arranging container for shipment etc without being actually aware of the goods being shipped cannot invite penalty under Section 114 of the Customs Act. Reliance is placed on the decisions in Hera Shipping Solutions Pvt Ltd v Commr of Cus, Chennai-IV, 2022 (382) ELT 552 (Tri-Chennai), Girish Kumar Mishra v Commr of Cus.(Export) (ICD) (TKD), New Delhi, 2019 (370) ELT 325 (Tri-Del) and Parvez J Irani v Commr of Cus, (Export), JNCH, Nhava Sheva, 2016 (333) ELT 333 (Tri-Mumbai). 5. Smt. Anandalakshmi Ganeshram, Ld. Authorised Representative appears for the Respondent and reiterates the findings in the impugned OIO. Ld. A.R. submits that the documents for export, namely, invoice and packing list was prepared by the appellant and therefore he has ac....
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....prises. Shri. B Ravi is the regular transporter for all the shipments of M/s. A.I Enterprises as fixed by Shri. Shyam. I would fax the plot permission to shri B. Ravi, who would send his trailer No. TN04-F 5137, with his driver Shri. Mohan to pick up the container from the container yard. For all the previous consignments of M/s. A.I Enterprises, the same trailer with the same driver Shri. Mohan was send by Shri. B Ravi. After picking up the empty container from the container yard, the driver of the trailer would move to Numbal CFS and also tell the container number and the liner seal number to Shri. Ravi. Shri. Ravi in turn would send the container number and liner seal number to me through SMS. I in turn send the same to Shri. Marimuthu through SMS. After getting the details of container and Liner seal numbers, Shri. Marimuthu proceeded to M/s. A.S Shipping Agencies Private Limited, CFS, Numbal for stuffing of cargo into the container and customs clearance. For the present consignment I have got an amount of Rs.40,000/- as freight from Shri. Shyam, Manager, M/s. A.I Enterprises through my Bank Savings Account No.4255 of Axis Bank, Perumbur Branch, Chennai and got an amount of Rs.....
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.... when he had the opportunity to do so. Hence for the above mentioned acts of commission and omission, the appellant is liable to penal action under Section 114(i) of the Customs Act, 1962. 9. It is seen that at para 6 of the impugned OIO, the adjudicating authority has recorded that Shri. P. Marimuthu, Transport clerk, M/s. Aaroodra Logistics Pvt Ltd, Chennai, in his voluntary statement dated 27.02.2012 stated interalia that on 23.2.2012, as directed by Shri. Senthil he reached the Numbal CFS and found the export goods Ragi, neatly packed in HDPE white colour 50 Kg. bags in 'C' Godown Slot No.2; that he was present when the goods were stuffed into the container and in his presence, the Customs Seal and the Liner's seal were affixed on the container; that the container was loaded in the trailer TN-04-F-5137 and the driver was Shri. Mohanarangan @ Mohan; that along with Shri Mohanarangan, one more person was also available in the trailer; that thereafter, he telephoned Shri Elango on his mobile and informed that the stuffing work was over and Shir. Elango in turn asked him to hand over the shipping dockets to trailer TN-04-F-5137 driver Shri. Mohanarangan@ Mohan and accordingly he....
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....pleted at 17.00 hours and the container had left the CFS at 22.30 hours." 12. As regards the present consignment, the appellant has in his statement stated that he has booked the container from K-Line, Liner Agent, Chennai and has forwarded the invoice and packing list from his email id to M/s. Aaroodra logistics. The SCN states that M/s. A. I Agencies was functioning at the premises let out by Shri. Alagirisamy, the address as per the Importer Exporter Code mentioned in the export documents and that Shri. Alagirisamy has stated about G. Sathiyamourthy being its proprietor and Shri. Shyam being the manager of M/s. A. I Enterprises. Thus, it is evident that M/s. A.I Enterprises and the persons connected to the firm are not fictitious and lends credence to the appellant's contention that he had interacted with them. That the whereabouts of S/Shri. G. Sathiyamourthy, proprietor of M/s. A.I Enterprises and Shri. Shyam, manager of M/s. A. I Enterprises could not be located and enquired is also stated in the SCN at para 19. Thus, when the documents forwarded by M/s. A.S. Shipping Agencies P Ltd, Chennai reflect that the declared cargo that is the 435 bags of ragi were stuffed in ....
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.... to examine Section 114 of the Customs Act, 1962, invoking which penalty has been imposed on the appellant under Section 114(i). The Section reads as under: "114. Penalty for attempt to export goods improperly, etc. - Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 113, or abets the doing or omission of such an act, shall be liable - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding three time the value of the goods as declared by the exporter or the value as determined under this Act, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding the duty sought to be evaded or five thousand rupees, whichever is the greater; (iii) in the case of any other goods, to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under this Act, whichever is the greater." 14. Thus, a person has to do or omit to do any act in relation....
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....nfiscation of goods contained in Sections 111 and 113 of the Act is a penalty in rem which is enforced against the goods, while the personal penalties imposed under Section 112 and other provisions of the Act are in the nature of penalty in personam which are enforced against the person concerned." (emphasis supplied) 16. Further, Abetment is not defined in Customs Act, 1962. The expression "abetment" has been defined under the General Clauses Act as one known in the Indian Penal Code and under the Indian Penal Code section 107 defines abetment. It is noticed that there is no material change under Section 45 of Bharatiya Nyaya Sanhita, 2023. It can also be noted with profit that the Honourable Supreme Court has in its decision in Shri Ram and others v State of UP, AIR1975SC175:1974 INSC 230, held that "Section 107 of the Penal Code which defines abetment provides to the extent material that a person, abets the doing of a thing who "Intentionally aides, by any act or illegal omission, the doing of that thing." Explanation 2 to the section says that "Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act....