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2023 (9) TMI 1266 - AT - CustomsLevy of penalty u/s 114(i) and 114(aa) of Customs Act, 1962 - smuggling of Red Sanders - diversion of duty free imported materials - receive and sell some of the diverted duty free materials without any document, in cash. Levy of penalty on M/s. Krishna Shipping Agency, CHA - HELD THAT:- As the appellant has already been excluded from taking any action under section CHALR, 2004, therefore, we also refrain from imposing penalty on the appellant. Accordingly, penalty imposed on the appellant M/s. Krishna Shipping Agency, CHA is set aside. Levy of penalty on M/s. Krishna Shipping Transport Agency - abetting in smuggling of red sanders - HELD THAT:- The appellant is transporter and he has deputed his driver for the work of loading of the container from the premises of the exporter. It is a fact that the driver was negligent at the time of loading of the goods in the container and he made a bald statement that he has gone for refreshment with some unknown person. It is very strange that how can a driver go for refreshment with an unknown person, therefore, it is a case of complete negligence on the part of the driver and for the act of the driver, the appellant is liable to be penalized, therefore, the appellant is liable for penal action under section 114(i) of the Customs Act, 1962 for the alleged act of abetting the smuggling of Red Sanders logs outside India. Accordingly, penalty of Rs.8.00 Lakhs is confirmed against the appellant namely M/s. Krishna Shipping Transport Agency. Levy of penalty on Shri Srikant Taparia - HELD THAT:- Shri Srikant Taparia was handling the export consignment of the exporter and also paying the expenses on account of export of the consignment on behalf of the exporter, which clearly shows that Shri Srikant Taparia was having hand in glove with the exporter and was actively engaged in the activity of smuggling of Red Sanders logs outside India with the help of the exporter. Therefore, no leniency is required to be taken on Shri Srikant Taparia. Therefore, penalty of Rs.2.00 Lakh imposed on Shri Srikant Taparia, is confirmed. Levy of penalty on Shri Ajay Kumar Ghosh - HELD THAT:- Shri Ajay Kumar Ghosh was assigned the duty of looking after the loading of the export consignment at the premises of the EOU which he clearly ignored and as per him he has deputed Shri Asit Kumar Bandyopadhyay to oversee the loading of export consignment in the container. But he was required to sign ARE-1 and ARE-1 is to be signed and sealed altogether, so without counter-sign of Shri Asit Kumar Bandyopadhyay and with the signature of Shri Ajay Kumar Ghosh, who was not present at the site when the loading took place, the container was sealed - defence taken by Shri Ajay Kumar Ghosh is beyond doubt that he was actively involved in the loading of Red Sanders in the container. Therefore, the observation of the adjudicating authority in the impugned order are not acceptable. Accordingly, penalty of Rs.2.00 Lakhs imposed on Shri Ajay Kumar Ghosh. Appeal allowed in part.
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