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2016 (4) TMI 141 - AT - CustomsImposition of penalties under sections 114 and 114AA of the Act 1962 - Illegal procurement and export of Red Sanders, a prohibited goods through CHA - Appellants actively engaged in this illegality - Except statement no other evidence found - Held that:- the appellant booked the containers from OAC India through M/s IAL Logistics (India) Ltd, Jaipur and stuffed the material in their factory and sent to Mundra Port without sealing. Shri Digpalsinh Bhupatsinh Sodha, Proprietor of the CHA firm M/s Fortune Shipping Services, in his statement dt.11.10.2013 stated that the forwarders sent the containers from Jaipur, they usually sent their goods by trucks and alongwith them they also bring supplier's invoice attached with the lorry receipt; that the forwarders send the export details by email to him before the arrival of the goods; that one of the type of exports opted by the forwarder is when the goods is sent within the container stuffed at the factory, but without line seal, Excise seal or any other seal, this is known as “buffer containers”, as it is shown as being stuffed at CFS but the same were already stuffed at the factory of the Exporter, then the shipping bill is filed and 2nd type of exports opted by the forwarder is where the goods arrive by the trucks and the same is stuffed at the CFSs at Mundra and then export Customs documents i.e. Shipping Bill is filed. If the Appellant cleared the export materials without sealing the containers, the burden of proof heavily lies with them that the offending goods were not loaded by them. Here, the appellants failed to prove that the offending goods were not loaded by them. So, from the impugned order it is seen that Shri Mangi Lal Lohiti, Proprietor of M/s Lahoti Impex and Director of M/s Indo Sino Impex P. Ltd, in his statement dt.09.10.2013 recorded under Section 108 of Customs Act, 1962 stated that Shri Rameshwar Sharma used to come with transport on which partly filled containers were loaded and in these partly loaded containers, he himself used to get the goods stuffed in the containers with the help of crane and labour, that the crane and labour were also arranged by Shri Rameshwar Sharma; in addition the partly stuffed goods wre packed in wooden boxes with lassing and were not visible. Hence, the penal provisions would be invoked against the appellant. As the appellant had not filed any appeal against the confiscation of the said goods by the Adjudicating authority which means the appellant had not disputed the confiscation of the declared goods. Section 50 of the Act, 1962 provides entry of goods for exportation. Sub-section (2) of the Section 50 provides the exporter of any goods, while presenting the shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of the contents. The appellant is the exporter and filed shipping bills, which were found attempted to export the Red Sander, prohibited under the Act, 1962 and other laws, by mis-declaring the description of the goods in the shipping bills and therefore, imposition of penalty under Section 114 of the Act is justified. Also as the appellant knowingly or intentionally used the shipping bills which is false or incorrect particular therefore, separate penalty is liable to be imposed under Section 114AA of the Act, 1962. Shri Suresh Sharma, employee of the export firm had knowingly involved in smuggling of Red Sander and therefore, imposition of penalty is warranted. Penalty is reduced to an extent. - Appeal disposed of
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