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2016 (10) TMI 292 - CESTAT KOLKATA

2016 (10) TMI 292 - CESTAT KOLKATA - TMI - Imposition of penalties u/s 114(i) of the Customs Act, 1962 - export of glass chimneys after verification and inspection - seal of container found broken - illegal export of Red Sanders were sought to be done under the cover of the appellant's documents of export - Held that: - Penalties u/s 114 are imposable upon the person who in relation to any goods does omits to do any act which would render such goods liable to be confiscated under Section 113 or .....

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only be attributed on the part of the appellants. But the same will not make the appellant a party to attempt to export of contraband goods. - The decision in the case of Air India-vs.- Commr.of Customs, Mumbai [2000 (5) TMI 858 - CEGAT, MUMBAI] relied upon where it was held that negligence alone is not enough for imposition of penalty. - Imposition of penalties not justified - appeal allowed - decided in favor of appellant. - Appeal Nos. C/75465-75466/2015 - Order No. FO/A/76096-97/16 .....

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Taiwan., through its representative Shri Sanjay Singh having telephone no.8145543052 and Email ID. Sanjaysingh347@yahoo.in. Shri Sanjay Singh nominated M/s. National Agency as a Customs House Agent and M/s. A.G.S.World Transport (I) Pvt. Ltd. as freight forwarder and authorized agent and M/s. Orient Overseas Container Line Ltd. The appellants appointed National Agency to be its Customs House Agent on the request of Shri Sanjay Singh. One container bearing No.OOLU1218170 was sent by Mr.Singh to t .....

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ontainer. In the ARE-1 Annexure, bottle seal of the shipping company bearing No.OOLBPB0363 was duly mentioned. After the container left the appellant s premises the appellant received an intimation by e-mail from Mr. Sanjay Singh that the order was placed for 1,000 boxes and since the quantum exported is lesser, the Custom House Agent should be instructed to withhold the container. The appellant instructed the Custom House Agent to act on the instruction of Mr. Sanjay Singh. 3. On 19.09.2012 the .....

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ms Act, 1962 was imposed on the appellant and also one of its Director. Hence, the present appeal. 4. Shri S.K.Mehta, Advocate appearing on behalf of the appellants argued that there is no provision under the Customs Act that monitoring of container movements from appellants premises till export are required to be undertaken by the appellants. That such responsibility is cast on multimodal transportation operator under Section 13 of the Multimodal Transportation of Goods Act, 1993. That under th .....

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imposed upon the appellants under Section 114(i) of the Customs Act, 1962, when the appellants had no knowledge that any contraband or Red Sanders Woods were found in transit before export. Ld. Advocate relied upon the following case laws in support of his argument that no penalty is imposable. (i) A.K.Saha-vs.-Commr.of Customs (P), Calcutta[2001(136) E.L.T.303(Tri.-Kolkata). (ii) Dhakad Metal Corporation-vs.-Commr.of C.Ex.& S.T., Daman[2015(330) E.L.T. 561(Tri.-Ahmd.)] (iii) Air India-vs.- .....

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ing to smuggle Red Sanders Woods. Ld. AR made the bench go through paragraph-26 of OIO dated 23.02.2015 to argue that no person by the name Shri Sanjay Singh actually existed and Shri Abhishek Jhunjhunwala only attempted to export the consignment in connivance with some other known and unknown persons. Ld. AR very strongly defended the adjudication order dated 23.02.2015 passed by the Adjudicating Authority. 6. Heard both sides and perused the case records. The issue involved in the present proc .....

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e consignment was intercepted it was found that the seal and container are broken. The Adjudicating Authority has held the appellants responsible for the negligence. It is observed from Section 13 of Multimodal Transportation of Goods Acts, 1993, relied upon by the appellants, that such responsibility regarding any loss/damage or delay in delivery of consignment lies with the multimodal transport operator as defined in Section 2(m) of this Act. 7. There is also nothing in the Customs Act, 1962, .....

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the container. Some negligence in not monitoring the export consignment can only be attributed on the part of the appellants. But the same will not make the appellant a party to attempt to export of contraband goods. As already mentioned, appellants had no knowledge of the contraband being carried out in the said container stuffed in their presence. 8. But this issue of imposition of penalty CESTAT, Bangalore in the case of Kiran S.Dixit-vs.- Commr. Of Customs, Hyderabad (Supra) held as follows .....

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receipt of stuffed containers duly sealed by the Customs on proper documents. The appellants do not exercise control over transportation of containers. The only aspect that is verified when the container is handed over back is whether it is damaged or not. Once the container is not damaged, it again enters into the trading channels for stuffing and destuffing and moves from place to place. After going through the statement of the appellant and the circumstances under which the container has been .....

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Abetment means a positive act on the part of the appellant and as can be seen from the facts and circumstances, there is no evidence forthcoming to show that the appellant had given any assistance in the attempted export of red sanders. In my opinion, negligence on the part of the appellant has not been proved by the Revenue. Under these circumstances, a penalty imposed on the appellant has to be set aside and the same is set aside. In the result the stay application as well as appeal are allow .....

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