TMI Blog2018 (9) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the declared cargo was de-stuffed and replaced with red sanders. Further, from the statement, it emerged that the said Mr.P.Ashok Kumar was working for one M/s.Dravidian Logistics, CHA and he is a close friend of the said Mr.Hemadri and that the appellants or the others, who had given their statements, did not plead any ignorance of the transaction nor ignorance of the persons, whose names have been mentioned there. Thus, the complexity and the connivance among persons, which include the appellants, had been clearly brought out in the order passed by the Commissioner of Customs. Thus, there was abundant evidence available, which was considered by the Original Authority and a finding has been rendered as to the complexity and the modus operandi adopted by the appellants for the purpose of illegal export of red sanders. Penalty upheld - appeal dismissed - decided against Appellant. - Civil Miscellaneous Appeal Nos.1901 to 1903 of 2018 & CMP.Nos.14630 to 14632 of 2018 - - - Dated:- 27-8-2018 - T. S. Sivagnanam And V. Bhavani Subbaroyan, JJ. For the Appellants : Mr. S. Murugappan For the Respondent : Mr. K. Ravi, SSC JUDGMENT ( Judgment was deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 114 of the Customs Act, 1962 in the absence of any knowledge and specific role on the part of the appellants and the appellant firm of the offence alleged to have been committed by some other person ? And (2) In the absence of any evidence whatsoever to hold that the appellants had knowledge or actively participated in the attempted export of red sander logs, is the Tribunal right in holding the appellants as abettors ? Additional question in CMA.No.1902 of 2018: Whether the Tribunal is correct in upholding the penalty on the proprietor as well as the proprietary firm under Section 114 of the Customs Act, 1962 on the very same grounds ? 5. Mr.S.Murugappan, learned counsel for the appellants submits that there is absolutely no evidence to establish the role of the appellants in the act of smuggling of red sander logs and in such circumstances, penalty under Section 114 of the Act cannot be imposed. It is further submitted that Mr.G. Masilamani the appellant in CMA.No.1901 of 2018 did not file the shipping bill, but it was filed by one M/s.T.Shanmugasundaram, which was the CHA, in the name of one M/s.A.S.P.Senna Traders and even according to the Department, the bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en done validly and in accordance with law and also prayed for confirming the order passed by the Tribunal. 9. We have heard the learned counsel for the parties and carefully perused the materials placed on record. 10. The first and foremost thing, which has to be seen, is as to whether there is any evidence either before the Original Authority or before the Tribunal to link the appellants with the smuggling of red sanders. 11. The said show cause notice dated 02.12.2014 states that the office of the said M/s.T.Shanmugasundaram, whose CHA was used for the purpose of export of cargo, was searched and at that time, one Mr.K.Ashok Kumar, Executive in the said M/s.T.Shanmugasundaram, the said Mr.V. Sundaramoorthy and one Mr.K.Bakthavachalam, both clerks in the said M/s.G.Masilamani were present and that on enquiry, the said Mr.K.Ashok Kumar of the said M/s.T.Shanmugasundaram, CHA informed that the customs clearance work relating to the said M/s.A.S.P.Senna Traders under Shipping Bill No.2657917 dated 12.5.2014 was attended by said M/s.G. Masilamani, CHA and that the said M/s.G.Masilamani was allowed to use the CHA licence of the said M/s.T.Shanmugasundaram in clearing the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or ignorance of the persons, whose names have been mentioned there. Thus, the complexity and the connivance among persons, which include the appellants, had been clearly brought out in the order passed by the Commissioner of Customs. 15. When the order passed by the Commissioner of Customs was tested before the Tribunal, the Tribunal also examined the factual position and recorded a finding that when the said Mr.G.Masilamani tried to contact the said Mr.Hemadri the man behind the attempted export of red sanders, he did not respond to his call and when the said M/s.A.S.P.Senna Traders were contacted to ascertain the identity of the exporter, they disowned the consignment of the offending goods. The Tribunal found on a consideration of the evidence available that the appellants were so intimately connected with the offence as well as smuggling racket and that therefore, the appellants could not gain benefit of the decision. The Tribunal, on noting the facts, held that the appellants' role was avidly clear that perpetuated smuggling for having lent their licence and had to face the consequence of misuse of such CHA licence to carry out smuggling. 16. The Tribunal also found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings recorded by the Commissioner of Customs as well as the Tribunal show the close and intricate link of the appellants in the attempt to smuggle red sanders. 19. The decision in M.Renganathan arose out of export of red sanders by concealing the same along with the cargo described as natural slate stone. Here also, the Tribunal came to the conclusion that there was no material evidence to conclude that the CHA was having knowledge of export of goods improperly i.e. the CHA had no knowledge of red sanders in the consignment in the guise of natural slate stone and that therefore, Section 114 of the Act was not attracted. This decision also does not render any assistance to the case of the appellants in the light of the factual position, which emerged in the matter and which has been dealt with by the Commissioner of Customs in an elaborate manner as well as by the Tribunal. Thus, we find that no grounds have been made out by the appellants to interfere with the order passed by the Tribunal. 20. For the above reasons, the appeals are dismissed and the substantial questions of law raised for consideration are answered against the appellants and in favour of the Revenue. No c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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