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2021 (7) TMI 673 - AT - CustomsLevy of penalty - Proceedings against the Custodian / Cargo Service provider - Smuggling - Smart Tortoises - Red Sanders - it is alleged that appellants had allowed the cargo to move into the sterile area without checking the status of Customs clearance i.e., without checking whether LEO was given or not - violation of Regulation 5(n) of HCCAR,2009 - Allowing unauthorised persons to enter into the area - Penalty. HELD THAT:- It is seen that allegations made against the appellants that shortcomings as a custodian lead to smuggling of ‘Star Tortoises’ on 07.11.2018 is without any basis. There is no evidence to show that the appellants have in any connection to such seizure of ‘Star Tortoises’. The allegations in show-cause notice now narrows down to the Shipping Bill No.5981482, dated 01.08.2019, wherein the LEO was given by Customs at 17:27 hrs. It is the case of the department that the appellants allowed the cargo for scanning at 16:45 hrs much before sanction of LEO. On perusal of the X-Ray Register, it is seen that though the cargo had reached for scanning at 16:45 hrs, the same was detained without conducting the X-Ray scan. It was again scanned only at 17:27 hrs, after the sanction of LEO. The department does not allege that the appellant has done the same with any wrongful intention. There is no allegation with regard to the goods exported under the shipping bill. Allowing unauthorised persons to enter into the area - violation of Regulation 5(n) of HCCAR,2009 - HELD THAT:- Though, it is stated in the show-cause notice that the appellants have allowed unauthorised persons to access the premises, there is no evidence to support the same. The details of such unauthorized persons seen in the premises are not furnished by department. The allegation without support of any evidence cannot sustain. Penalty - HELD THAT:- The penalty imposed upon the appellants cannot sustain and is not warranted. Appeal allowed - decided in favor of appellant.
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