TMI Blog2012 (7) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the importer/exporter, a lower penalty would meet the ends of justice - penalty imposed on the appellant is reduced - C/386/2007 - Final Order No. 141/2012 - Dated:- 16-2-2012 - Dr. CHITTARANJAN SATAPATHY, J. Shri S. Murugappan, Adv., for the appellants Shri T.H. Rao, SDR, for the respondents Heard both sides. 2. In this appeal the challenge is to imposition of penalty of Rs.10 lakhs on the appellant, hence, the same is taken up for hearing and disposal by the Single Member Bench as permitted under the law vide Section 129C (4) of the Customs Act, 1962, though initially it was listed before the Division Bench for hearing of the stay petition. This case was booked by the customs authorities based on intelligence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss man let alone the exporter would check the veracity of buyer to ensure that he receives payment for the supplies made. According to one Shri P. Saravanan, who owned the trailers informed Shri Bhaskar Naidu that he was the brother of the overseas buyer. However, whereas he failed to give the correct address of Shri P. Saravanan too and instead provided some fictitious non-existing address and phone numbers to the department, as and when Shri Bhaskar Naidu needed to contact Shri Saravanan he was able to reach Shri Saravanan. For instance, on 03.08.05, Shri Bhaskar Naidu contacted Shri P. Saravanan to enquire whether the container, which left his premises, had reached Chennai Harbour. Again on 05.08.05 Shri Saravanan contacted Shri Bhaskar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transit for which the appellant has no knowledge and is not responsible. According to the Ld. Advocate, the fax message found in the appellant s house does not establish long time business dealings of the appellant with Shri Selvam. The Ld. Advocate further states that the department has not been able to trace Shri Selvam, Shri Saravanan, and Shri Krishnan, who played a vital role and master minded the smuggling of red sander logs and hence, investigation made by the department is incomplete, and the adjudicating authority on the basis of incomplete investigation cannot arrive at the conclusion that the appellant is involved in the smuggling of red sander logs. He also states that the appellant has been in the business of export of granit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched a fraud against the department by creating a web of intermediaries to smuggle prohibited red sander logs under garb of granite cobble stones. Hence, the prima facie view of the Tribunal at the stay stage was that the finding recorded by the adjudicating Commissioner was beyond the scope for the allegations against him. Hence, the requirement of pre-deposit was waived. 7. However, after going through the details of the case and the findings of the Commissioner reproduced above, a final view cannot be taken that the appellant should be let off with no penalty. I find that the adjudicating Commissioner has imposed a penalty of Rs. 10 lakhs on the appellant under Section 114 (i) of the Customs Act, 1962. The proposal in the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that for mis-declaration in respect of imported goods resulting in contravention of Section 111(m), the question of mens rea is not relevant for liability to confiscation and penalty but, only for quantum of fine and penalty imposable. The ratio of the said decision of the Hon ble Supreme Court is squarely applicable for similar provisions in respect of export goods under Section 113(i) and 114 of the Customs Act, 1962. For the purpose of export, the exporter is required to truthfully declare the contents of the export cargo and not attempt to export something other than what is declared. It becomes even a more serious offence if coupled with mis-declaration of the description what is actually sought to be exported is also prohibited, as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot through the banking channel which would have left a trace of the international transaction involved in the export of the genuine goods. His attempt to shift the responsibility to persons whose addresses and contact numbers are fake or non-existent and who could not be traced at all, is futile. It would have been different if these people could have been traced with the help of details given by him. 11. Keeping in view the provisions of the law, cited decisions of the Hon ble Supreme Court and the jurisdictional High Court, the legal obligation of the exporter and also the material facts of the case, I am of the considered view that the appellant is liable to penal action under Section 114 of the Customs Act, 1962. As regards the quan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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