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2013 (6) TMI 589 - HC - CustomsPenalty u/s 114(i) of Customs Act - export of non-Basmati Rice - Since the export of Non-Basmati is prohibited by DGFT by notification No.93(RE207)/2004/09 dated 1.4.208, therefore, 135 MT of Non-Basmati rice found in five containers valued at Rs. 71,87,400/- were placed under seizure on 6.3.2009 and given in safe custody. - Held that:- The finding arrived at by the Tribunal with regard to connivance between the appellant and exporter is based on no evidence. As a matter of fact, the Commissioner as well as the Tribunal assumed the fact of connivance. The Tribunal has relied on para 10.2 of the trade notice. This paragraph provides that stuffing of container shall be done in presence of Customs house officer and other representative. If the Customs House Officer was not present and the stuffing was carried out, then it was wrong committed on part of the respondent as no stuffing could be permitted in view of paragraph 10.2 in absence of Customs Officer. Instead of fixing the responsibility on the Customs Officer, the Tribunal has shifted the liability on the clearing house agent, when a specific case of the clearing house agent was that he or his representative were not present at the time of stuffing. No mens rea can be attributed to the appellant nor the appellant could be said to have abetted in exporting of prohibited rice - Penalty levied by the Commissioner of Customs and confirmed by the CESTAT against the appellant is set aside. - Decided in favor of assessee.
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