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2015 (11) TMI 1502 - CESTAT MUMBAI

2015 (11) TMI 1502 - CESTAT MUMBAI - 2015 (329) E.L.T. 481 (Tri. - Mumbai) - Penalty u/s 114(i) on CHA for abetting the export of the prohibited goods - confiscation under Section 113 - Whether or not the respondents had knowingly attempted to export prohibited goods i.e. rice in the guise of dal Husk are liable for penalty under Section 114(iii) of the Customs Act, 1962 - Held that:- there is no breach of obligations by the respondents Director and employee of CHA. It is not the case that CHA h .....

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ated:- 6-5-2015 - Shri Anil Choudhary, Member (Judicial) For the Petitioner : Shri M.S. Reddy, Dy. Commissioner (AR) For the Respondent : Shri S.N. Kantawala, Advocate ORDER Per: Shri Anil Choudhary The Revenue is in appeal being aggrieved with the Order-in-Appeal No. 2641 & 2642(ADJN.-EXP)/2014(JNCH)/EXP-132 & 133 dated 26.6.2014 passed by the Commissioner of Customs (Appeals), Mumbai-II, wherein the penalty imposed on the respondent (Director of CHA firm), Shri Sohel Firoz Kazani and t .....

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ual goods under export declared as Dal Husk, were actually non-basmati rice which is prohibited vide Notification No. 38/07 dated 15.10.2007. Detailed investigation revealed that two persons viz. Shri Anand Kursija and Shri Om Prakash Gurbani attempted to export non-basmati rice illegally under VKGUY scheme. For this purposes, they unauthorisedly used the IEC of M/s Crescent Trading and Impex Co., Pune by forging and fabricating the letter heads and stamps of the said firm. Regarding the role of .....

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14(i) of the Customs Act. The export cargo (non-basmati rice and Dal Husk) were held liable for confiscation under Section 113(d) and 113(i) of the Customs Act. A penalty of ₹ 10 lakhs was imposed on respondent No. 1, the Director of the CHA firm, Mr. Sohel Firoz Kazani and a penalty of ₹ 5 lakhs under Section 114(i) was imposed on the employee of the CHA firm, Mr. R.T. Gadge. 2.1 Being aggrieved, the respondents herein preferred appeal before the Commissioner (Appeals). The learned .....

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pondent No. 1 had himself informed the authorities i.e. the Assistant Commissioner of Customs (Export) in writing with a copy marked to Manager and Apprising Officer at Speedy CFS, the Commissioner of Customs (Export) and the officer of Directorate of Revenue Intelligence on the same date i.e. on 26.8.2010 itself, informing with reference Shipping Bill No. 8781138 dated 23.8.2010 about the mis-declaration of cargo discovered by them in the process of marking the bags containing the cargo. It was .....

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ment was not that of the actual exporter. The mastermind of the whole operation was the said Anand Kursija, who was in connivance with Shri Gurbani for export of rice, which was prohibited. The allegation on the respondent is that they had knowingly aided and abetted the export of the prohibited goods. The scrutiny of the records proved to contrary of the findings in the Order-in-Original. It was further found by the learned Commissioner (Appeals) that findings in the Order-in-Original for impos .....

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CHA representative to de-stuff the cargo for examination. It is also mentioned that while de-stuffing of the cargo was done on 26.8.2010, it was noticed that no shipping marks and number, as per the related invoices, were found on the gunny bags. It is further observed that the statement of the CHA representative and respondent No. 2 Mr. R.T. Gadge, in which he had stated that on 25.8.2010 around 17.30 hrs. two containers for export in the name of M/s Crescent Trading and Impex were taken in b .....

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rector of CHA, who immediately reached the CFS and informed the authority in writing as indicated herein above. The Commissioner (Appeals) further found that CHA have followed the rules and procedure for export of goods and have never avoided the de-stuffing of the container for examination. If the CHA would have been in connivance or that the containers were having prohibited goods rice, he would have tried to convince the examining officer of the Customs to examine the cargo without de-stuffin .....

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edge of the actual goods contained in the container at the time of carting in. Further, on very first opportunity on getting knowledge of prohibited goods, the CHA have informed the Customs authorities in writing. Thus, the action of the CHA cannot be considered to be an after-thought. Further, no other mala fide was found regarding the use of IEC of another by the said Anand Kursija and Shri Gurbani. Accordingly, the Commissioner (Appeals) found that the penalty imposed on the respondent Direct .....

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he parties. Person posing as exporter was not having IEC code assigned and using that of others. Moreover, such exporter was no functioning from address furnished to DGFT pertaining to such IEC assignee. Further, mis-declaration of quantity, value and description of the export goods was found. In such circumstances, there being no finding of positive role of CHA which can be described as attempt to illicit export, no penalty was held imposable on the CHA of the exporter. 3. The learned AR appear .....

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s inside the container before destufiing in shed at night time, Shri Ramdas Gadage could also notice it before carting of goods and brought it to the notice of the officer before proceeding for examination. 3.2 The appellant involved himself knowingly in abetting the export of the prohibited goods and thus making the goods liable to confiscation under Section 113 of CA and thus has rendered himself liable to penal action under Section 114(i) of CA 62. 3.3 The officer in his report mentioned that .....

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of container. 3.5 CHA had not followed the public notice no. 75/2010 dated 20.07.2010. 3.6 It was a responsibility of the CHA to verify the antecedents of the exporter or their customer. 3.7 The act of Shri Sohel Kazani appeared to be a desperate act for covering his role in smuggling of prohibited goods out of India and nexus between exporter and CHA. 3.8 Whether or not the respondents had knowingly attempted to export prohibited goods i.e. rice in the guise of dal Husk are liable for penalty u .....

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