TMI Blog2015 (6) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Per: Shri Anil Choudhary The appellant M/s Freight Connection India Pvt. Ltd. is in appeal against order of the Commissioner of Customs (Appeals) whereby penalty of ₹ 5 lakhs was imposed under Sections 114(i), 114(iii) and 117 of the Customs Act, 1962. 2. The brief facts are that the Revenue received information that prohibited goods were attempted to be exported through JN Port, Nhava Sheva, in factory stuffed container no. IALU 2250490 under the guise of freely exportable goods. Shipping bill dated 12.2.2010 was filed by the CHA, M/s Franc Cargo Clearing o behalf of M/s Able Moulders, Aurangabad having IEC No. 0397083751. Based on the said intelligence, on 19.2.2010, it was found that the said container was loaded onboard the vessel MV Sima Sadaf, which sailed for Port Jebel Ali from Jawaharlal Nehru Port on 18.2.2010. The said container was called back and examined by the officers under panchanama on 4.3.2010. On investigation, the goods stuffed in the container was found to be red coloured wooden logs of different sizes. Shri Madhvanan A, Wild Life Inspector, Wild Life crimes Control Bureau was called upon for examination, who examined the said goods an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Umesh V Dabri in his statement dated 28.5.2010 inter alia stated that IEC code have been issued to M/s Able Moulders by the DGFT, Aurangabad and subsequently another work area situated at Walung, Aurangabad was acquired by them. They were manufacturer exporter and their unit was registered with the Central Excise authority. They regularly exported plastic moulded products to various consignees in Dubai and Oman. It was further stated that there CHA was M/s Airol Cargo Services Pvt. Ltd. and all their consignments were stuffed at their factory situated at Aurangabad under stuffing permission granted by Jawaharlal Nehru Custom House, Nhava Sheva. When shown copies of shipping bill in question dated 12.2.2010 and 28.1.2010 and related export invoices, Shri Dabri stated that the shipments did not belong to them, the consignee mentioned on the said shipping bills and invoices was not amount their customers and was not known to them and further, the rubber stamp appearing on the invoices was different than the one used by them. He also denied having business relation with M/s Organic Coating Ltd. or his partner. In the present exports, the container was qualified as IAL India Ltd. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized representative. It was only after two months when they came to know about enquiry being conducted by customs that the said firm was nonexistent nor Shri Ramesh could be traced. The said Manager M.M. Kambli admitted that there is mistake on part of the company to provide the said container to Shri Ramesh and his firm. 2.3 As regards the present appellant, Mr. Paul Gunsalves, Manager (Documentation) of the appellant stated that their company head is responsible for its activities. He further stated that he was worked with company since last 14 years and in capacity of Manager (Documentation) since the last 6 years, the appellant was agent of M/s Baylines (Dubai), who vide the container owners/operators/container line is engaged in the business of providing containers for the purpose of export to exporters, CHA and other booking parties. Generally, they received orders for containers from freight forwarders/logistic providers and CHA. As Manager (Documentation), he was in charge of all activities related to providing the containers, preparation of the container loading list and submission of the same to the Vessel Agent, preparation of the export manifest relating to shipment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsible for the companies and that he was also liable to penalty under Section 114 of the Act along with Shri Paul Gonsalves, Manager (Documentation) of the appellant. It has been further stated in para 26.1(v) of the show-cause notice that the actual exporters/owners of the goods disappeared from the scene as soon as investigation began and never came forward before the department to give their statement. Further, the exact nature of the goods could not be confirmed in absence of the goods and the fact that the actual exporters/owners of the goods were not available for questioning. 2.5 The said show-cause notice was adjudicated by the present Order-in-Original dated 16.11.2012 issued on 4.2.2013. It has been observed in para 83 of the order that the proceedings are kept in abeyance against Shri Ramesh, Shri Ganesh Poojari, Shri Vasant and other person/firm of company until they are apprehended since they are not traceable at this moment. 2.6 Further, as regards the present appellant the finding have been recorded in para 81 of the impugned order that the appellant failed to verify the credentials of their clients or even the existence of the firm intended by the client, cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Doss cannot be sustained. Learned Commissioner is yet to decide as to whether the exporter and Shri Antony Doss committed any offence whatsoever. He cannot find anybody to have abetted any offence until such offence is determined. Accordingly, it was held by the Tribunal that penalty imposed on the appellants is premature and accordingly the penalty was set aside. Accordingly, the learned Counsel prays for setting aside the penalty imposed on the appellant. 4. The learned DR supports the impugned order and further states that for imposition of penalty under Section 114 no mens rea is required. Further reliance was placed by the learned DR on the ruling of the Madras High Court in the case of Commissioner of Customs Vs. Bansal Industries 2007 (207) ELT 346 (Mad), wherein the question before the High Court was whether the element of mens rea is required for imposition of penalty under the Customs Act. The Hon'ble High Court relying on the ruling of the Apex Court in the case of Chairman, SEBI vs. Shriram mutual Fund 2006 (5) SCC 361 answered the question in favour of the Revenue and against the assessee thereby holding that the mens rea is not required for imposition of punish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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