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2019 (5) TMI 671

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..... ainable in view of the various decisions relied upon by the Revenue cited supra wherein it has been held that cross-examination cannot be claimed in every case as a matter of right. Penalty u/s 114 and 114AA of the Customs Act, 1962 - HELD THAT:- With regard to quantum of penalty imposed on the appellant under Section 114 and 114AA of the Customs Act, 1962, it is on a higher side because the original authority has imposed penalty of ₹ 2.5 lakhs each under Section 114 and Section 114AA on the main accused viz. Mr. Abdul Razak and Shri K.P. Sibu. In para 48(f) and 47 of the Order-in-Original, original authority has observed that Mr. Abdul Razak @ Ashraf is the prime person in the attempted smuggling of Red Sander and Mr. Sibu was the .....

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..... hich resulted in the recovery and seizure of 11, 178 kgs of Red Sander Logs having market value of ₹ 1,90,02,600/- and international grey market value of approximately ₹ 4,47,12,000/- which were placed inside plywood boxes. The Additional Commissioner of Customs, Custom House, Cochin-9, who adjudicated the case found that Shri K.N. Venugopal, owner of a freight forwarding company M/s. Unicom Logistics, Cochin was the main contact of financier Shri Abdul Razak M @ Ashraf and he conspired with others to arrange for all the operations in Cochin. The Additional Commissioner of Customs vide Order (Original) No.027/2017 dt. 30/03/2017 confiscated the Red Sanders absolutely and imposed penalty of ₹ 5 lakhs under Section 114 of Cu .....

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..... e adjudicating authority. He further submitted that both the authorities have failed to establish that the appellant had any financial enrichment in the alleged illegal export of Red Sander. He further submitted that the requirements of Section 114AA have not been complied with in the present case because in order to attract penalty under Section 114AA, the prosecution has to establish that the appellant has knowingly signed or used declaration statements or documents pertaining to the export whereas in the present case, there is no document or declaration which is signed by the appellant to allege as falling under Section 114AA of the Customs Act. . he further submitted that the appellant has a track record and was not involved in any ille .....

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..... ppellant who misused the IEC code M/s. Liberty Marketing to smuggle out Red Sander, an item prohibited for export. Although one consignment was exported on behalf of M/s. Liberty Marketing prior to the impugned export, Shri Shanmugham, Director had not endorsed any of the shipping bills or any declaration which were done by Shri Sanoj on the direction of Shir K.P. Sibu. The learned AR also relied upon the following decisions in order to buttress his argument that cross-examination is not a right. i. Surjeet Singh Chhabra Vs. UOI [1997(89) ELT 646 (SC)] ii. Jagdish Shanker Trivedi Vs. CC, Kanpur [2006(194) ELT 290 (Tri. Del.)] iii. Naresh J. Sukhawani Vs. UOI [1996(83) ELT 258 (SC)] iv. K.P. Abdul Majeed Vs. CC, Cochin [2014(309) ELT 671 (Ke .....

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..... .P. Sibu. In para 48(f) and 47 of the Order-in-Original, original authority has observed that Mr. Abdul Razak @ Ashraf is the prime person in the attempted smuggling of Red Sander and Mr. Sibu was the Operation Manager of the smuggling syndicate who coordinated the operation and he was also instrumental in tampering with the latches of the container so as to enable to open Customs sealed container without breaking up the seals. These two persons were the prime persons in the attempted smuggling of the Red Sander logs but inspite of that the original authority has imposed the penalty of ₹ 2.5 lakhs for each offence. Therefore I am of the considered opinion that the appellant has rightly been convicted under Sections 114 and 114AA of th .....

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