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2024 (2) TMI 321 - AT - CustomsLevy of penalty u/s 114(i) of the Customs Act, 1962 - smuggling of red sanders - prohibited goods or not - HELD THAT:- It is evident that nothing specific alleging a positive role played by the opponent in the attempted export of red sander wood is forthcoming from the order of the learned adjudicating authority least of all carrying out an act or omission to render the seized goods liable to confiscation. In fact in para 10.1 of his order reproduced supra, there is a certain reference to the wrong doings on part of the exporter, undoubtedly pinning the blame on the exporter and not the Customs Broker - It may also be pertinent that for imposition of penalty under Section 114(i), it is necessary to show contumacious action with regard to the subject goods, as the opening clause itself of the section as well as subclause (i) talks of and concerns the goods for which a violation or a contravention arises leading to the imposition of penalty therein. There is nothing to impute by way of a categorical assertion the conspiring of, or an express omission or commission, leading to the fraud on the part of the appellant. There is nothing in the findings of the learned Commissioner to assert a positive role or to impute abetment on the part of the appellant in the attempt to smuggle out Red Sander Wood. Thus, in view of anything specific on the part of the appellant being brought on record, it would be completely inappropriate to subject the appellant to penal provisions under Section 114(i) - in order to take penal action against the present appellant, a partner of the Customs Brokerage firm, it is necessary in law to show that the appellant had in any way connived in the substitution of the declared cargo, or was in the knowledge of the fact that the declared cargo loaded in the container was substituted with prohibited goods. There is no such finding by the adjudicating authority in the matter. It is on record that the bottle seals were intact when the goods were subjected to examination in the docks. Further, the container was factory sealed, where the Customs Broker had no role to play. It be noted that in terms of the obligations under the CHALR,- i.e. Violation of Regulation 11(n), no case remains any further in view of the said proceedings, having attained finality. It is expressly incumbent on the department to have pointed out the role played by the appellant herein for imposition of penalty on them under Section 114(i) of the Customs Act - there is no finding by the adjudicating authority to indicate any beneficial consideration having been passed on to the appellant by way of a monetary reward or otherwise for his assumed role for which the appellant has been penalised by the adjudicating authority. The order of the learned adjudicating authority cannot be sustained and needs to be set aside - Appeal allowed.
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