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M/s Freight Connection India Pvt. Ltd. Versus Commissioner of Customs (Export) , JNCH, Nhava Sheva

2015 (6) TMI 947 - CESTAT MUMBAI

Confiscation of goods - Penalty u/s 114 - Misdeclaration of goods - Smuggling of red sanders logs - Held that:- present appellant have issued the container in question for past export through another freight forwarder. I further find that the whole case of the Revenue is based on assumption and presumption as neither the main accused or the exporter/owners of the goods have been found and brought to adjudication and in the absence of examination of the main exporter and further in absence of the .....

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AC (AR) 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 g .....

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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 and expressed his expert opinion that they were Red Sanders wood logs of mixed quality of an international market value of around ₹ 800/- per kg. The net weight of the goods was found to be 9915 kg and as per the rate of 800 per kg amounted to ₹ 79,32,000/-. Red Sanders are prohibited goods und .....

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28.1.2010, Export Invoice No. 16/09-10 dated 23.1.2010, Container No. BAXU 2608585 purported to be Printing Ink (GE Coldset Black) having FOB value of ₹ 7,98,675/- . This shipping bill was filed by CHA M/s Ajay Overseas shipping. The goods already exported and delivered to the consignee which was coming under the category of past export. As per the Central Excise invoices related to the subject goods (based on which the checklist and the shipping bill number are generated), the subject go .....

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by them. Shri Deepak P. Doshi, General Manager of M/s Organic Coating Ltd. in his statement under Section 14 of the Central Excise Act, 1944 denied knowledge of any exporter by the name of M/s Able Moulders and shipping bill related to the present container No. IALU 2250490. Mr. Doshi stated that they are nothing to do with said goods under the said invoices and the said invoice was fake. Mr. Doshi in his letter addressed to the Supdt. of Central Excise having jurisdiction denied that they have .....

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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 t .....

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ners in question was Franc Cargo Clearing Services having its office at Andheri (E), Mumbai and M/s Ajay Overseas Shipping, CBD Belapur, Navi Mumbai. As regards the enquiry with container provider/container line/operating agent providing the container no. IALU 2250490 in respect of present export of Able Moulders, the container provider was IAL India Ltd. and J.A. Maritime. 2.2 As regards the container of the past export being container No. BAXU 2608585 where export in the name of Able Moulders, .....

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their company to one Shi Ramesh of M/s Globe Link Clearing and Forwarding. The said container owned and operated by M/s Freight Connection India Pvt. Ltd. was booked by them from the said container owners in their name and the delivery order for the said container issued by M/s Freight Connection India Pvt. Ltd. in their favour and the same was handed over to Shri Ramesh by Shri Mathew K Ketti, one of their Marketing Executive had also initially brought the order for booking the container from S .....

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hri Ramesh were not known to them, no attempt was made by their company to verify whether Global Link Clearing and Forwarding or the said Shri Ramesh was exporter of the CHA or their authorized 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 a .....

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xporters, 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 of containers, preparation of MBL etc. pertaining to business at JN Port. The said container No. BAXU 2608585 and .....

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ng the container acted in conformity with the company policy decided by Shri Farhad Dholoo, Managing Director of their company. 2.4 Accordingly, a show-cause notice dated 22.12.2002 was issued calling upon among others, the present appellant alleging that it appears from the facts found in investigation that the appellant was not vigilant about the probable misuse of the container and seal owned/provided by them. They failed to take precaution to preclude the misuse of the container and seal by .....

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actual exporters to smuggle the prohibited goods. The said failure on part of the appellant and to take precaution amounts to abetting the actual exporter to export the prohibited goods which have rendered the goods liable to confiscation under Section 113(d) and the appellant have thereby rendered themselves liable to penalty under Section 114(i) and (iii) of the Customs Act. Further, the appellant by abetting M/s Welgro Line India Ltd and Shri Ramesh, who were neither the legal exporter nor th .....

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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 bee .....

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tion on part of the appellant facilitated the actual exporter with the container of smuggling of the said goods and rendered the goods liable for confiscation under the provisions of the Customs Act. Accordingly, it appeared that the said act of providing the containers by the container owners to the actual exporters, persons who were neither the legal exporters no the CHA constitutes the abatement of the actual exporter, the smuggling of the prohibited goods thereby rendering the goods liable t .....

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ellant is before this Tribunal. 3. The learned Counsel for the appellant submits that as the container was issued to them through another freight forwarder M/s Welgrow and accordingly it was the obligation of the said Welgro to verify credential of their clients before giving the container. It is normal rule of practice in the case of the appellant to verify the existence of the party when come through another freight forwarder. The learned Counsel urges that the whole case is based on assumptio .....

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bunal in the case of Mithran Vs. Commissioner of Customs,coimbatore 2009 (234) ELT 465 (Tri-Chennai), wherein vide final order dated 23.7.2008, the Division Bench of this Tribunal held that in view of the Commissioner s finding with respect to the said Mithran and other, who was the CHA, the finding of abatement and offence committed by the exporter and Shri Antony Doss cannot be sustained. Learned Commissioner is yet to decide as to whether the exporter and Shri Antony Doss committed any offenc .....

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