TMI Blog2022 (12) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... electronic era, procuring orders and conducting business activities online taking advantage of internet facility is a normal phenomenon. The allegation of abetting in the attempted illegal export of prohibited goods are not supported by any direct, corroborative or cogent evidence. The entire proceedings against the Appellants have been framed on the basis of assumption and presumption without conclusively establishing any direct nexus between the Appellants and the exporter. It is also not understood that why the exporter was not traced to bring the entire proceedings to a logical end. It has been held time and again that separate penalty on the company and the Director for the same default should not be imposed. The impugned order is modified to the extent of setting aside of penalty of Rs.5.00 Lakh each imposed under Section 114(i) of the Customs Act, 1962 on M/s.Geotrans Maritime Logistics Pvt.Ltd. and its Director Shri Tirthankar Chakraborty - Appeal allowed in part. - Customs Appeal Nos.75514 & 75115 of 2018 - FINAL ORDER NO. 75575-75576/2022 - Dated:- 5-12-2022 - SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) Shri R.K.Kar, Consultant for the Appellant (s) Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HA and two independent witnesses and found to contain a number of wooden logs instead of Cast Iron Products as declared in the Shipping Bill as well as in the ARE-1. On physical examination the recovered logs appeared to be Red Sandal Wood. A panchnama was drawn in presence of Shri Dilip Kumar Sarkar and two independent witnesses. 3.4 A statement was recorded from Shri Dilip Kumar Sarkar on 27/06/2009 who inter alia stated that one Shri Tirthankar Chakraborty of M/s. Geotrans Maritime Logistics Pvt.Ltd. had handed over the documents to the said CHA and the said documents were subsequently handed over to him by his Company M/s. R.N.Lall Brothers for processing and completing the customs formalities. 3.5 Shri Tirthankar Chakraborty (Appellant No.2) was summoned under Section 108 of the Customs Act, 1962 and his voluntary written statement was obtained on 28/06/2009. In the said statement, he inter alia stated that he was a Freight Forwarder and was the owner of the company named M/s. Geotrans Maritime Logistics Pvt.Ltd. The function of the said company was to procure orders from the potential exporters and to provide them suitable containers and CHA to facilitate their ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xporter for the job. 3.9 In response to a summon dated 02/07/2009 issued under Section 108 of the said Act Shri Liaquat Ali, representative of M/s. Marine Container Services (I) Pvt.Ltd. stated that the subject detained container was handed by his company as container agent; that the subject container was provided by them to M/s. Geotrans Maritime Logistics Pvt.Ltd. on 24/06/2009 for the shipment to port-Jebel Ali er M.V. Dalian, Voyage-02; that one Shri Debasish of M/s. Geotrans Maritime Logistics Pvt.Ltd. had contacted their marketing team over phone requesting for one 20 container and their company as per procedure asked for booking details; that the same was submitted by Shri Debasish by Fax; that on receipt of the details the container agent issued a Pick-up letter to pick-up the container from their depot and the Carting Order along with one bottle seal bearing No.PM-105760; that copies of the pick-up letter and Carting Order were provided by him; that after container was detained by the customs authority, their marketing personnel contacted one Shri Tirthankar of the Appellant s company, that person told that customs had called me and would let them know the details; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Brothers, that in order to procure the container No.CRXU-2443114 (20 ) he contacted one Shri Siddharta of M/s.Marine Container Services (I) Pvt.Ltd. the container agent; that the booking format was supplied by Shri Siddharta to him and then he filled up the booking format and sent the same to M/s.Marine Container Services (I) Pvt.Ltd. by Fax for issuance of Pick-up Letter for the said container agent; that he then contacted Shri Rabi Agarwal who told him to hand over the Pick-up leter to Md.Alam Khan (Mobile No.9836461246); that he then contacted Md.Alam Khan over phone who told him to send the pick-up letter by Fax No.24392102; that Md. Alam Khan confirmed him over phone that he had received the pick-up letter sent by Fax and he would pick-up the container from the container agent; that he also stated that he did not know where the container was loaded however, while handing over the agent s seal received from CHA to one representative of Shri Rabi Agarwal, he asked about the loading point, to which the representative of Shri Rabi Agarwal replied that the container would be loaded at Domjur, Howrah; that thereafter Shri Rabi Agarwal informed him over phone that the loaded containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain; (vi) Md.Shamim Akhtar, Proprietor of M/s. M.Hussain and owner of Truck No.AS01-1326. 5. The Appellant submitted the defence reply to the Show Cause Notice vide their letter dated 20/07/2010 firmly denying and disputing each and every allegation made against him in the Show Cause Notice and submitted that he merely acted as a Freight Forwarder and procured the container and arranged CHA to the exporter for facilitating export and completed the customs formalities. He did not take any part in stuffing and loading the consignment in the container, processing the shipping bill and other related documents to be presented before customs, nor engaged in the transportation of the said goods from the place of loading to N.S. Dock. Therefore the allegation of abetting in the attempted illegal export of prohibited goods is absolutely baseless, not supported by any direct, supportive, corroborative or cogent evidence. The entire proceedings against him have been framed on the basis of assumption and presumption without conclusively establishing any direct nexus between him and the exporter. 6 The authorized representative of the Appellant made further submission that the proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al whose fax No. is 2439-2102, which is normal practice done by all freight forwarders. So the lifting/pickup must have been done by Mr. Ravi Agarwal A/c. Saila Enterprise. I don t have a slightest of idea who has sealed the containers, though I was informed by Mr. Agarwal that the container is supposed to have a Central Excise seal and I do not know who brought the container to the dock for export. Mr. Agarwal on 27.06.09 at around 11.00 AM phoned me and informed that the container has reached the dock area and standing in line for entry in the dock, then I phoned up Mr. Dilip Sarkar of M/s. R.N.Lal Bro s the clearing agent and informed him to do the necessary job for export/ or other clearing Agents formalities. I came to know that the container of the sealed consignment was detained by Customs Authority by a Telephone call from the DIU (P) s Office on 28.06.09 at 1.30 PM. I then immediately contacted Mr. Ravi Agarwal and informed him that there was a problem from Customs and he should come to the Dock immediately. Then when I arrived near to Fancy Market at Khidderpore I again rang him to know his whereabouts. But his mobile was found to be switched off. Repeated trie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated by me on my request since due to some nervous problem I am not in a position to write properly. 13. I find that the Appellant is neither a Customs Clearing Agent nor an exporter/importer. The Appellant s main business activities remain restricted to the booking of empty containers as per the requirement of the exporter and in appropriate cases merely suggested the suitable Clearing Agent to facilitate their export and with this their activities come to an end. The Manager of M/s. Marine Container Services (I) Pvt.Ltd. mentioned in his submission that the said container belongs to Perma Container Line and M/s. Marine Container Services is the agent of M/s.Perma Container Line. He also confirmed that the container was issued to M/s. Geotrans Maritime Logistics Pvt.Ltd. for their shipment to Port-Jebel Ali on M.V. Dalian, Voyage-02 on 24.06.2009. I find that the Department proceeded against the Appellant on the ground that they failed to bring forward the real exporter and thereby abetted and connived with the exporter in the attempt of illegal export of prohibited goods. I find that in the present electronic era, procuring orders and conducting business activities on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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