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2019 (1) TMI 1191 - AT - CustomsExport of prohibited item - huge quantity sent as Baggage - detailed examination of the baggage revealed that it consisted of 537 wood blocks of total weight 10,652 Kgs. which is less than the net weight 11,230 Kgs. as mentioned in the shipping bill - It was also pointed by him that wrong HS code and description were given by the CHA - penalty on appellant as well as on CHA - permission to export the goods - Held that:- Admittedly, appellant Mr. Bernard Maurice Gerard Kuhne death with effect from 21.10.2009 has been acknowledged by this Tribunal but penalty continue to be in force as no express order was passed to that effect. Penalty being punitive in nature admittedly gets abated on the death of the person and in view of such legal position, penalty of ₹ 2,00,000/- imposed on deceased Bernard Maurice Gerard Kuhne is abated on his death that occoured on 21.10.2009. Penalty on other appellant have been set aside vide earlier order of this Tribunal and therefore the issue of confiscation of goods by the respondent department is required to be scrutinised in this appeal to determine its legally. Statement of the Partner of CHA Mr. Parvez Jehangir Irani was relied upon by the respondent Department to arrived at the conclusion that RITC number was mis-quoted as 44072910 instead of 44011000 but going by the relevant provisions of Section 3 & 11 of the Foreign Trade (Development & Regulation) Act, 1992 as well as Chapter 44 under Schedule-II of EXIM Policy, it can very well be said that CHA had intended the same to be Burmese imported teak wood made exclusively out of imported old and used wood and quoted it under RITC No. 44072910 for which export policy permits free export for imported logs/timber of all species other than CITES. The said statement is not submitted by either of the parties for scrutiny but as found from the record is that CHA had mistakenly declared it as Indian wood instead of imported Burmese teak wood - Further, even if the contention of the Commissioner of Customs is accepted that CHA partner admitted that the tariff items HS code should be 44011000, since item description covered under prohibited wood does not cover blocks that to made exclusively out of imported logs/timber, I have got no hesitation to conclude that the goods under confiscation, which the Assistant Commissioner of Customs, ICD Mulund (Export) informed to have been kept in container number TR2311935, are not prohibited goods that can be subjected to confiscation. The confiscation order is held as not in conformity to law and substituted appellant is here by permitted to export the goods to her home country the Netherlands - appeal is allowed and order passed by the Commissioner of Customs (General), Mumbai is here by set aside.
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