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TMI Blog2013 (9) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 in the name of the same exporter. In all the shipping bills the goods were declared as machinery parts and the details are as under: S. No. Shipping Bill No./Date Invoice No. & Date Container No. Item FOB Value (Rs) Consignee 1 8127000 dated 08/02/10 EXP-055/2009 05/02/10 TCKU 3351988 Machinery Parts (Exhaust Pipe) 2,83,797.00 Star Point General Trading LLC, PO Box 81278, Dubai, UAE 2. 8076349 dated 23/01/10 EXP-054/2009 21/01/10 TTNU 2127728 Machinery Parts (Exhaust Pipe) 4,23,367.20 Al Badr Trading PO Box 30356, Sharjah, UAE 3 8070473 dated 21/01/10 EXP-053/2009 dated 19/01/10 PMLU 2056528 Machinery Parts (Exhaust Pipe) 4,26,423.00 Al Falash Imports and Exports, PO Box No.45676, Ajman, UAE 4 8038024 dated 11/01/10 EXP-052/2009 09/01/10 TCKU 2633170 Machinery Parts (Exhaust Pipe) 4,17,811.20 Al Manar Trading Est. PO Box 28435, Sharjah, UAE 5 8016003 dated 04/01/10 EXP-051/2009 01/01/10 PMLU 2035839 2,88,449.00 Razi Exports & Imports, PO Box N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce on the part of the CHA firm in filing the export documents as representing M/s. Marvelous Engineers Pvt. Ltd. without any authority from them and without verifying the genuineness of the transaction. Mr. Sanjay Rana the proprietor of the CHA firm owned up the responsibility for the mistake committed by his employees. M/s. Sungrace Logistics Pvt. Ltd. had provided the containers for the above exports and they had procured these containers from M/s. Prema Shipping Line (India) Pvt. Ltd. and handed over the same to one Shri Manoj Vichare of M/s Sara Logistics. The booking for the container was done through e-mail and the containers were delivered to Shri Manoj Vichare on the basis of the e-mail booking. M/s. Sungrace Logistics Pvt. Ltd. did not know Shri Manoj Vichare of M/s. Sara Logistics nor did they cause any enquiry about the existence of M/s. Sara Logistics. They also received the export documents in the name of M/s. Marvelous Engineers Pvt. Ltd. assuming that M/s. Sara Logistics represented M/s. Marvelous Engineers Pvt. Ltd. even though there was no authority letter from M/s Marvelous Engineers Pvt. Ltd. 2.4 On conclusion of the investigation, a show-cause notice dated. 07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are not liable to any penalty. He relies on the decision of this Tribunal in the case of Prakash Freight Movers Ltd. 2010 (261) ELT 269 in support of his contention. 3.1 The Ld. Counsel for the CHA, Shri Sanjay Rana, submits that they had obtained all the export documents such as ARE-1, export invoices etc. from M/s. Sungrace Logistics Pvt. Ltd. and the documents indicated that the stuffing has been done under Central Excise supervision. They did not know that the entire documents were fabricated by forging the signatures of the Central Excise Officers and their rubber stamps and seals. Thus the CHA was an innocent victim and was not a party to the conspiracy for smuggling of red sanders. They had verified the existence of M/s Marvelous Engineers Pvt. Ltd. from the internet and relied upon the copy of the IEC issued by the DGFT. They were not aware of the contraband nature of the goods under export. Therefore, they cannot be alleged to have abetted the smuggling transaction. He relies on the decision of the Tribunal in the case of Swaroop Shipping Services Vs. CC (Seaport-Exports), Chennai, [2008 (227 ELT 555], Neptune's Cargo Movers Pvt. Ltd., Vs. CC (Export), Channai [2007 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which do not correspond in respect of value or in any material particular with the entry made under this Act or in the case of baggage with the declaration made under section 77; SECTION 114. Penalty for attempt to export goods improperly, etc. Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act, whichever is the greater; In the present case, there was a ban on export of red sanders and the goods were mis-declared as automotive parts in the export documents. Therefore, the provisions of clauses (d) & (i) of section 113 are clearly attracted and the confiscation of the goods is clearly sustainable in law. 5.3 Penalties have been imposed on the appellants under the provisions of clause (i) of section 114. The said section has two limbs. The first l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.4 As regards the penalty imposed on M/s. Marvelous Engineers Pvt. Ltd., it is clear from the show-cause notice as also in the adjudication order that misuse of IEC code by Shri Manoj Vichare was not known to them at all until the department informed them of the same. As regards the non-compliance to Public Notice No.10/2010 dated 03/02/2010, in respect of 6 export transactions, they took place prior to the issue of the public notice and in respect of the 7th transaction, where the goods were seized, the shipping bill was filed on 08/02/2010, barely one week after the issue of public notice; the appellant situated far away in Kolhapur could not have been even aware of the said notice. The statute does not envisage monitoring of the import/export transactions on a daily basis and bringing any discrepancy to the notice of the Customs authorities. Therefore in the absence of any evidence establishing the involvement of the appellant in the smuggling of red sander wood logs, it cannot be alleged that there is an omission and commission on their part so as to attract the provisions of Section 114 (i) of the Customs Act. The said Section can be invoked only when any person, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the CHA. If the CHA had taken care to verify the genuineness of the transaction by contacting the exporter and obtaining his authorization, he could have easily prevented the smuggling transaction by informing the Customs authorities about the suspicious nature of the transactions. 5.6 The ld. Counsel for the CHA has placed reliance on the decision of the Tribunal in the case of Swarooop Shipping, Neptune's Cargo Movers Pvt. Ltd., U. Sivasubramanian and Natvar Parikh & Co. Ltd., cited supra. We have perused all these decisions and they are all Single Member Bench decisions and are not binding on us and the facts of those cases were also different. In the case of U Sivasubramanian, the case was that the documents were signed by the CHA without verification of the contents of the goods. In the case of Neptune's Cargo Movers Pvt. Ltd. also the penalty imposed was set aside on the ground that the CHA had no active role in the transaction that led to confiscation of the goods. In the case of Swaroop Shipping Services, the goods were swapped after the let export order was given and the goods were no longer under the control of the CHA. It was in these circumstances, it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separate penalty on the employee, Mr. P.B. Gupta. Accordingly we set aside the penalty imposed on Mr. Gupta. 5.7 As regards the penalty imposed on the freight forwarder M/s. Sungrace Logistics Pvt. Ltd. and its Director Shri. Dattatray B. Suryawanshi, the negligence on their part is very evident. They undertook the transaction on the basis of e-mail received from Shri Manoj Vichare of M/s. Sara logistics. The did not verify whether M/s. Sara Logistics existed at all. Being a freight forwarder, they are expected to know the existence or otherwise of M/s. Sara Logistics, which is also in the same business. However, the fact is that M/s Sara Logistics did not exist at all. They were not vigilant about the probable misuse of the container and the seal provided by them by unscrupulous elements. By providing the container and the seal to persons who were neither the legal exporters nor to the CHA, they committed a grave error. Further, they received the export documents from M/s. Sara Logistics only on the basis of e-mail correspondence and this has happened not only once but in respect of seven transactions. Thus, there is a clear omission on their part as a result of which the contai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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