TMI Blog2018 (9) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... f export cargo without CHA licence. In the absence of any evidence linking Shri C. Srijith to the export fraud, penalties set aside. Penalty on S/Shri D. Srinivasa Rao and A.M. Jamaludheen both Partners of RCO, the exporter - Held that:- Shri D. Srinivasa Rao had admitted in his statement that export documents were signed by him in the capacity of being a Partner of RCO. Shri A.M. Jamaludheen in his statement has also admitted to be Partner in the export business. In view of the fact that the contraband goods having been found in the consignment entry for export and the fact that S/Shri D. Srinivasa Rao and A.M. Jamaludheen both Partners of the exporter, penalties upheld - the confiscation of the export consignment as well as penalties imposed on S/Shri D. Srinivasa Rao and A.M. Jamaludheen upheld. Option of redemption fine - case of appellant is that goods, which are not in the nature of contraband found in the export consignment, should have been given an option for redemption - Held that:- From the record, we find that no request have been made by the appellants to the adjudicating authority for release of the goods other than the contraband. Hence, we find no reason to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics Pvt. Ltd. [hereinafter referred as GFLPL ]; Shri C. Srijith, Branch Manager, M/s. International Logistics Freight Forwarders [hereinafter referred as ILFF ]. S/Shri D. Srinivasa Rao and A.M. Jamaludheen, Partners of exports of RCO. Upon conclusion of investigation, show-cause notice was issued and proceedings were concluded with the issue of the impugned order, in which, the adjudicating authority, passed the following order:- (i) The export goods were ordered for confiscation under section 113(d)(h)(i) as prohibited goods as well as other goods used to conceal the prohibited goods under section 118(b) of the Customs Act, 1962; (ii) Penalties were levied as follows:- S.No. Name S/Shri Designation Amt. of Penalty (in Rs.) 01 D.M. Srinivasa Rao Partner of RCO 7,50,000 02 A.M. Jamaludheen Partner of RCO 7,50,000 03 R. Ramesh Manager of GFLPL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental Representative justified the penalties imposed on the above three persons. He submitted that the adjudicating authority has imposed penalty of S/Shri R. Ramesh and K. Shanmugam by holding them as representative of the CHA, it was their duty to be present at the time of the stuffing since they were involved in the smuggling of contraband, he justified the penalties imposed on them. In respect of Shri C. Srijith, he argued that he was in constant tough with the exporters, visited the exporter's factory where Red Sander goods was lying around. He also argued that against the gross weight of the consignment declared to be 8 MTs, when examined the goods weighed 4.15 Mts., evidencing the misdeclaration. 6. Shri B. Satish Sundar, learned Advocate submitted on behalf of S/Shri D. Srinivasa Rao and A.M. Jamaludheen as well as the exporters, as follows:- (i) He submitted that both the Partners had requested for cross-examination of various persons, whose statements have been used against them. Without deciding the request, the adjudicating authority had finalised the adjudication without giving an opportunity for cross-examination. The jurisdiction of the Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority has found fault with the two persons for being negligent in performing their roles of the CHA, but the fact remains that there is no evidence on record to show that these two persons were aware of the presence of the contraband in the export consignment. We also find no evidence on their involvement in any other way in the fraud. Consequently, we are of the view that the penalties imposed on S/Shri R. Ramesh and K. Shanmugam are not justified and hence are set aside. 10. We now consider the penalties imposed on Shri C. Srijith, Branch Manager of ILFF. In the impugned order, the rule attributed to him is that of a middle-man, who has liaised with the partners of the exporting firm, and also approached the CHA firm with the export documents for filing the shipping bill. The reasons cited by the adjudicating authority for imposing penalty on him is that he was actively engaged in handling of export cargo despite not being a licence holder of CHA. Since, it was Shri C. Srijjth, who sealed the container with a dummy OTL and escorted the contained to the CFS, the adjudicating authority has presumed that he supervised the stuffing of the goods in the factory of the expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not entitled to raise this plea at the stage of the appeal before the Tribunal. We also find no justification for remanding the matter for redecision on this ground. 14. In view of the above, we uphold the confiscation of the export consignment as well as penalties imposed on S/Shri D. Srinivasa Rao and A.M. Jamaludheen. 15. The only other arguments advance on behalf of the appellants is that goods, which are not in the nature of contraband found in the export consignment, should have been given an option for redemption. Instead the entire export consignment has been confiscated absolutely. From the record, we find that no request have been made by the appellants to the adjudicating authority for release of the goods other than the contraband. Hence, we find no reason to consider the same. 16. In the result the appeals are disposed of as detailed below: Sl. No Appeal Nos. Name of Persons Decision/s S/Shri 01 C/00095/2012 R. Ramesh, Manager of GFLPL Penalty s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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