TMI Blog2015 (11) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner of Customs (General) as noted above. I further find that there is no finding to the effect that the appellant have indulged into any Act leading to an order of confiscation under the provisions of section 113. Further I find that order of confiscation is the condition precedent for imposition of penalty under Section 114(i). - condition precedent for imposition of penalty under Section 114(i) is absent in the facts of the present case - Decided in favour of appellant. - APPEAL NO. C/85901 & 85902/13 -MUM - Final Order Nos. A/1383-1384/2015/WZB/SMB - Dated:- 13-5-2015 - Shri Anil Choudhary, Member (Judicial) For the Petitioner : Shri Anil Balani, Advocate For the Respondent : Shri M.K. Sarangi, Dy. Commr. (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liday, the authority letter shall be handed over on the next working day that is 2nd May, 2008. It is further on record that the said Mr. Yogesh paid an amount of ₹ 10,000 to the appellant. The appellant in good faith finding the container sealed having the Customs bottle seal and Central Excise seal intact filed the shipping bill and the container was entered in the CFSspeedy buffer yard. The accompanying invoice was also countersigned by the Preventive Officer after verifying the bottle seal and Central Excise seal. In the morning of 2/5/2008 appellant received telephone call from the DRI office enquiring about the address of the said Mr. Yogesh to which the appellant cooperated by giving the proper address with contact numbers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they have been out of business since then causing enormous hardship to the company and to the staff and their family members. Relying on the said finding and also the forfeiture of security deposit the punishment already given under the provisions of CHALR and also taking notice of the fact that the said order have been accepted by the Review Committee, allowed the appeal in part reducing the penalty by 50%. Being still aggrieved the appellants are before this Tribunal. 5. The Counsel for the appellant urges that it is already concluded that there is no malafide Act of omission or commission on the part of the appellants. It is further urged that there is a condition precedent for imposing penalty on the appellant under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70, by Co-ordinate Bench in the case of Smuggling of Red Sanders, on the finding that no fact come on record about the involvement of the CHA in the attempt to smuggle out red sanders. Nothing incriminating had been recorded on the part of the appellants. It has been held that the CHA did not take care to verify the genuineness of export/exporters and therefore they have aided in smuggling of red sanders. Under such facts leading to failure of duties as required under CHALR, it was held that it may lead to action under those provisions but certainly cannot lead to a conclusion that they (CHA) aided and abetted in the attempt to export prohibited goods. In absence of evidence of any action on the part of CHA, so as to render the goods liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits 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; (emphasis supplied). 8. Thus, I hold that the condition precedent for imposition of penalty under Section 114(i) is absent in the facts of the present case. Accordingly, I allow the appeal of the appellants and set aside the penalty imposed and retained vide the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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