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TMI Blog2019 (9) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... , Advocate for appellant 19 Shri A.P. Kothari, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA The appeals as detailed in table below are directed against the order in original No 42/2012 dated 30.11.2012 of Commissioner Custom (Export) Nhava Sheva. By the impugned order Commissioner has absolutely confiscated the 25.260 Metric Tons of "Red Sanders Wood Logs" valued at Rs. 2,02,08,000/- mis-declared on the shipping bill No 9296841 dated 27.01.2011 as "Synthetic Filament Yarn other than Sewing Thread Polyester Texturized Yarn" having value of Rs. 8,94,919/- While confiscating the said goods absolutely as these goods are prohibited for exports, Commissioner has imposed penalties as indicated in the table on various person who are appellants before us. S. No Appeal No Appellant Penalty in Rs' Lakhs Section 114(i) Section 117 Total 1 C/85460/2013 Shubh Fab Tex 33 - 33 2 C/85475/2013 Albatross Shipping Ltd 20 1 21 3 C/85476/2013 Raghavan Nambiar 10 1 11 4 C/85477/2013 Krishnan Venkatesh 10 1 11 5 C/85659/2013 Yogesh Ramchandra Adak 10 1 11 6 C/85660/2013 Nityam Khosla 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2011, declared as 'synthetic filament yarn other than sewing thread polyester texturised yarn' of a declared FOB value of Rs. 8,95,500/- under sections 113(d) and 113(i) of the Customs Act, 1962 read with Section 3 of the Foreign Trade (Development and Regulation) Act, 1992" Since the order of absolute confiscation of 25.26 Metric Tons of 'Red Sanders Wood Logs' valued at R 2,02,08,000/- sought to be exported by mis-declaring them as 'synthetic filament yarn other than sewing thread polyester texturised yarn' of a declared FOB value of Rs. 8,95,500/- against the shipping bill No 9214488 dated 04.01.2011 is not under challenge in appeals before us, nor the actual owners/ exporters of the said goods are not before us we do not pronounce anything in respect of the said portion of order. Any finding recorded in this order may not be construed as in favour of or against the order of Commissioner contained in the said paras. 4.1 Para 29 of Show Cause Notice specifically states as follows: "29 Framing of penal charges against Shri Kishor Ghag, Shri Pramod, Shri Deepak and Shri Atul Jadhav of M/s Jadhav Freight Forwarders, Shri Sameer Gohil of M/s Central Cargo Express Movers and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve thousand rupees, whichever is higher: Provided that where such duty as determined under subsection (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the penalty so determined;] (iii) in the case of any other goods, to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under this Act, whichever is the greater. SECTION 117. Penalties for contravention, etc., not expressly mentioned. - Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to a penalty not exceeding one lakh rupees. 4.4 Penalties under Section 114 of Customs Act, 1962: From plain reading of Section 114, it is evident that the said section is applicable only in respect of a person who has in rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '. "Preparations to Export" is not covered under Section 113(d) which covers 'attempts' and or Section 113(1), which covers "goods entered for exportation under claim for drawback which do not correspond in any material particular with the entry made under the Act or....." As entry in the case of Exports would, as per Section 2(16) of Customs Act, 1962 would be 'entry' made only on the Shipping Bill filed, under Section 50 of the Act. No actions, wilful participation or knowledge thereof in this activity, after such an entry was made, under Section 50 of the Customs Act, 1962, is brought out in the order against the appellant. The penalty under Section 114 of the Custom Act, 1962 as arrived could be therefore not upheld." IDBI Bank Ltd [2011 (274) ELT 439 (T-Del)] 6. It is seen that the finding against Shri Ravinder is one of carelessness and failure to perform his duties. These might constitute facts to institute departmental proceedings against Shri Ravinder but we are of the view that these facts are not adequate to constitute an offence under Section 114 of the Customs Act. This is because the penalty under Section 114 can be imposed only on a person who in relation to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner amounting to Rs. 7 lacs, Rs. 9 lacs and Rs. 12 lacs is, therefore, unjustified. The Tribunal has considered this aspect of the matter in its order and it was observed by the Tribunal that all the four applicants including Mr. Mehta and present three respondents are employed in the office of Regional Transport Officer, Nadiad. Mr. D.T. Mehta examined the case in question following the application for registration. In the application he has written against the column the year of manufacture 'not known'. The year of the manufacturing was shown in the affidavit of owner. Shri Jagdishbhai P. Parikh, Head Clerk, said in his statement that the year of manufacture was not filled in his register and registration certificate issued was because of the advice received from Mr. D.T. Mehta. Why Mr. Mehta chose to write 'not known' in the application was not satisfactorily explained nor why he could not take steps to ascertain the year of the manufacture. However, the Commissioner's order does not indicate how this would have facilitated the smuggling of the cars. The Tribunal, therefore, observed that the duplicate registration certificate which was presented to the Custom at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be stretched to hold that exporter is liable to penalty under Section 114 in the absence of any evidence on record to show that any acts of commission or omission on his part rendered the goods liable to confiscation under Section 113. The goods were stuffed in the container under the Central Excise supervision and the red sanders logs were substituted en route to the Chennai Port. It is intriguing to find that the seals were not tampered with and they were intact at the time of examination of the consignments. The impugned order does not contain any material to conclude that the exporter either knew that the goods were liable to confiscation or did something or omitted to do something which commission or omission tendered the goods liable to confiscation; Therefore, penalty under Section 114 cannot be sustained." M. Renganathan [2017 (345) ELT 95 (MAD)] "4. The main plea of the learned Standing Counsel appearing for the department is that the first respondent, while acting as Customs House Agent, has not verified the authenticity of the documents and by such act of negligence, has abetted and aided in the smuggling of the red sander wooden logs, which are prohibited for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 117 of Customs Act,1962. From the scheme of Section 114 and Section 117, it is quite evident that penalties under Section 114 and 117 could not have been imposed simultaneously. Penalty under Section 117, could have been imposed only in cases where the Custom Act, do not prescribe for imposition of penalty under any other provision. Once we have set aside the penalties under Section 114, we proceed to examine the penalties imposed under Section 117. In fact the Commissioner in his order have observed that appellants on whom the penalties under section 117 have been imposed were negligent in some manner in fulfilling the statutory responsibilities in the manner in they should have been done. They could have been more careful in respect of their clients/ customers so that such frauds could have been prevented. In our view the penalties imposed under is necessary to deter appellants and signal to them to be more careful while conducting their business in relation to imports and exports of goods. However in our view the end of justice will be met if the penalties of Rs. 1,00,000/- (Rupees One Lakhs) imposed by Commissioner under Section 117, is reduced to Rs. 20,000/- (Rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X
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