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2015 (11) TMI 944 - CESTAT MUMBAI

2015 (11) TMI 944 - CESTAT MUMBAI - 2016 (333) E.L.T. 333 (Tri. - Mumbai) - Confiscation of goods - Penalty u/s 114 - CHA did not take care to verify the genuineness of export/exporters and therefore they have aided in smuggling of red sanders - Held that:- It is already concluded in favour of the appellants that they have not indulged themselves malafidely in filing of the shipping bill in question, leading to attempted export of prohibited goods. The Act of negligence and lack of vigilance on .....

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on 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.R.) ORDER Per: Anil Choudhary: The appellants are in appeal against the common order passed by the learned Commissioner .....

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bills for export under the duty drawback scheme. Further fact is that on 30/4/2008 the appellant-partner met the said Yogesh at JNCH building, near parking area, and was informed that there was a job of one M/s APW President Systems Ltd. having IEC code for export of zinc oxide under factory stuffing procedure. The said Yogesh also showed invoice bearing Central Excise examination report wherein the factory stuffing permission was indicated. The appellant verified the genuineness of the factory .....

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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 add .....

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e CHA firm and the partner. Being aggrieved the appellant preferred appeal before the Commissioner (Appeals). 4. The learned Commissioner (Appeals) in the impugned order has taken notice of the order dated 9/06/2010 passed by the Commissioner of Customs (general) wherein the following findings have been recorded in favour of the appellants 31. To sum up, I am of the view that the CHA have performed their job in a casual manner. Even though, I do not fully concur with the findings in the Inquiry .....

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ed upon the CHA, I also take into account that the CHA Licence was placed under suspension on 25.07.2008 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 .....

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g the goods under export liable to confiscation. In absence of such a finding no penalty could've been imposed and/or retained as has been done by the impugned order. The Counsel further relies on the ruling's in the case of Neptune Cargo Movers Pvt. Ltd Vs. Commissioner of Customs 2007 (219) ELT 673, A Co-ordinate Bench of this Tribunal in the case of Attempted Export of Red Sandalwood, Considering the fact that the CHA had no role in the transaction that led to confiscation of contraba .....

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ade out which is not sufficient for imposition of penalty under Section 114. It is further urged that for the allegation of abetment to stand there has to be finding as to consideration for the said abetment, which is absent in the facts of the present case. The appellant further relies on the ruling in the case of Sethu Samudra 2010 (262) ELT 570, 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 atte .....

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goods. In absence of evidence of any action on the part of CHA, so as to render the goods liable to confiscation, no penalty is attracted under Section 114(i). Accordingly the learned Counsel prays for deleting the penalty in full. 6. The learned A.R. relies on the impugned order. It is further stated that in view of the negligence and/or carelessness on the part of the appellant CHA the unscrupulous person's attempted to export prohibited goods. Had the appellant been vigilant the attempte .....

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and the security deposit stands forfeited by the order 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). For reference the provisions of Section 114(i), is reproduced herein SECTION 114. Penalty for atte .....

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