TMI Blog2016 (12) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainers out of India. Penalty is imposable upon the appellant u/s 114(i) of the Customs Act 1962. However in the interest of justice penalty of ₹ 10 lakh imposed upon the appellant is reduced to ₹ 5 lakh as the value of contraband Red Sanders Wood has been assessed at ₹ 27.12 lakh. Appeal disposed off - decided partly in favor of appellant. - C/125/2012 - Final Order No. A/75755/16 - Dated:- 29-7-2016 - Shri H.K.Thakur, Member(Technical) Shri S. C. Jana, Consultant for the Appellant (s) Shri S. K. Naskar, AC (AR) for the Revenue (s) ORDER This appeal has been filed by the appellant against OIO No. KOL/CUS/PORT/16/2012 dt 15/2/2012 passed by CC (Port), Customs House Kolkata as Adjudicating authority. Under this OIO dt 15/2/2012 Adjudicating authority imposed a penalty of ₹ 10 lakh upon the appellant under Sec 114 (i) of the Customs Act 1962. 2. Sh. S. C. Jana (Consultant) appearing on behalf of the appellant argued that his client was only a petty broker and has not violated any of the provisions of Sec 113 and accordingly no penalty under Sec 114 (i) of the Customs Act 1962 can be imposed upon the appellant. That from the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different version in his last statement dt 17/3/08 when one of the exported container was brought back found to contain Red Sanders Wood. That as per the statement of CHA, as reproduced in Para 5.1 of the show cause notice, all the work relating to export of containers was handled by the appellant. That no where in the show cause notice appellant has been charged to be an exporter. That quantity of 140 bales of Raw cotton mentioned in the shipping bill was correctly stated in appellant s statement dated 4/3/08. That as per Para-10.1 of the show cause notice dated 12/9/08 appellant has been charged only as a facilitator in exporting Red sanders wood. Learned AR also made the bench go through Para - 13 (a) of the show cause notice dated 12/09/08 to argue that charges leveled in the notice only point out that appellant tried to hide the names of real culprit and was never addressed to as the exporter. That the only other noticee CHA was let off because there was no evidence of his knowledge that Red sanders wood were being exported in the containers. 4. Heard both sides perused the case records. The issue involved in the present appeal is whether appellant has been correctly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruck loaded with the container to the parking place near Toll Plaza and he left for home at 05.30 AM on 14.02.08; (m) On 14.02.08, the truck loaded with the container entered N.S. Dock and the container was examined by Customs in presence of him and Shri Chail, the representative of the CHA; (n) Other container TGHU 7762200 (40) was also loaded in the similar manner in Santragachhi; (o) The TGHU container entered the Dock on 23.02.08 and the consignment was examined by Customs in presence of him and the CHA s representative. 5.3 Shri Mahendra Nath Laha was again examined and statement recorded under Section 108 of the Customs Act, 1962 on 05.03.08, he stated interalia that; (a) Raju Babu contacted him at the last time on 03.03.08 when he was enquired about the frelight from Kolkata to Colombo; (b) he was paid ₹ 67,000/- for container rent and out of that he gave ₹ 66,554/- to Mihir Das of E. C. Bose; (c) Besides the above, he was given two cheques addressed to E.C. Bose collectively amounting to ₹ 90000/- for freight charge of the first container from Colombo to Singapore. He handed over the two cheques to Mihir Das of E.C. Bose; (d) The ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to state anything contrary in his statement dt 17/3/08 when he was confronted with the fact the Red Sanders Woods was also stuffed in the containers. 4.3. Another argument taken by the learned consultant in the written submissions is that his client has been taken as the exporter of the Red Sanders and that he is not considered as an abettor. It has been correctly stated by the consultant in Para-2 of his written submissions dt 28/3/16 that an abettor is one who encourages / assists in the commission of crime. In the present proceeding as per the statements dt 4/3/08, 5/3/08 17/3/08 appellant himself is giving the details of activities he has carried out on behalf of same one. All the acts appellant was carrying out were being done after having clear knowledge that Red Sanders logs are being exported. His phony resistance means that he knew that export of Red Sanders wood was prohibited. All the activities done by the appellant are in the nature of assisting in export of prohibited Red Sanders. Appellant has thus to be treated as an abettor. Though Adjudicating authority has not given detailed findings but the crucial facts in appellant s own statements, existing on record, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Cement (P) Ltd Vs CCE Kanpur (Supra) Richarson Cruddas (1972) Ltd. Vs CCE Nagpur [1999 (107) ELT 386 (Tri) are not applicable to the facts of the present appeal, as the relied upon case laws pertained to Central Excise where assessments are record based evidences in addition to statements are required to substantiate the offence committed. Cases of smuggling are not record based have to be established only on the basis of Sec 108 statements because smuggles / abettors will not leave any written records as evidences and will not like to sign any assessment document. 4.5. Relied upon case law of Apex Court CC Lucknow Vs G.P. Jaiswal (Supra) was decided by the Apex Court where issue was overinvoicing of goods. In this context Apex Court observed that a person supervising stuffing of goods may not be aware of over invoicing of goods. Observations of Apex Court in Para-9 of this case law also clearly convey that knowledge of the wrong deeds should exist before a person can be visited with penalty. In the present case appellant had clear knowledge of prohibited nature of Red Sanders Wood for export but continued to assist the unknown exporters till the dispatch of container ..... X X X X Extracts X X X X X X X X Extracts X X X X
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