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TMI Blog2024 (2) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... he Custom Seals were found intact, however upon opening of the said container, the officers of the DRI recovered 8940 kgs of red sanders wood kept below 7260 kgs of HC Binding Wire. As the export of red sanders is prohibited the said goods were seized by the department under the provisions of Section 110 of the Act. Upon conclusion of investigations a show cause notice under Section 124 of the Act was issued to the appellant among others, proposing imposition of penalty under Section 114(i) of the Act for his role in attempted smuggling of red sanders. The show cause notice also proposed the imposition of penalty under Section 114 AA of the Act, however no such penalty has been imposed by the learned adjudicating authority. 3. The subject show cause notice has been adjudicated confirming a penalty of Rs. ten lakh on the appellant as stated supra, and reiterating and confirming the earlier order No. Kol/Cus/Commissioner (Port)/54/Adjn./2018 dated 29.06.2018. It would be interesting to point out for records that the said issue had earlier been adjudicated by the Commissioner of Customs (Port), whereupon penalties were imposed on various noticees, including the appellant and the seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary to examine as to how the learned Adjudicating Authority has dealt with the subject matter, holding the appellant liable to penal consequences. Thus, the following para of the adjudicating order are extracted hereunder: " 9. Submissions were made by the Customs Broker Sourendra Nath Mallick on 15.01.2019. In the submissions the following contentions were made : i) The container had been loaded and sealed at the factory premises in presence of Pratip Moltra, Manager of M/s Panel Pin Manufacturing Pvt. Ltd. ii) The seal of the container had been found intact at the time of interception by DRI at NS Dock. iii) M/s. Mallick Clearing Agency processed the documents and filed S/Bill on the basis of Letter of Authorisation signed by P. Moitra, Manager and Authorised Signatory of M/s. Panel Pin Mfg Co. Pvt. Ltd. and other documents like KYC, PAN, IEC, Bank details duly signed by the Director of Export Co. iv) During investigation statements of T.K. Saha, Assistant Commissioner and P. Bala, Inspector, who sealed the container were not recorded by DRI. As such the DRI is not justified in involving M/s. Mallick Clearing Agency, CB, for omission and commission and M/s. Mallic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggling of Red Sanders Wood, a prohibited item for export, by acting as the Customs Broker (CB) to the exporter. He neither properly checked nor verified the credentials of the said exporter and of Sandip Ghosh which is mandatory as per rules and regulation. This clearly caused the violation of Regulation 11(n) of Customs Brokers Licensing Regulations, 2013 (CBLR) read with Circular No. 9/2010- Customs dated 08.04.2010. Sourendra Nath Mallick claimed to have procured the export clearance work from Raj Kumar Mondal and Pradip Deb through one of his staff Amar Chandra Roy. The said procurement of order was not done from the IEC holder/Exporter as it should have been. Sourendra Nath Mallick admitted that he had never seen the exporter before or had any contact with the exporter earlier. These acts of the CB made it possible for such smuggling attempt to take place in the first place. There have been similar cases of smuggling of Red Sanders by adopting same modus operandi involving other exporters and which is known to the trade. Being in the business of clearing/forwarding of export/import Sourendra Nath Mallick, Partner of M/s. Mallick Clearing Agency should have been alert to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the adjudicating authority adverts to the role of the appellant. However, there is no specific reference or a finding of any omission on the part of the appellant but for violation of Regulation 11(n) of the CBLR, which concerns with the verification and ascertainment of the credentials of the exporter. It may also be pertinent that for imposition of penalty under Section 114(i), it is necessary to show contumacious action with regard to the subject goods, as the opening clause itself of the section as well as subclause (i) talks of and concerns the goods for which a violation or a contravention arises leading to the imposition of penalty therein. 8. We note that in the aforesaid findings of the learned Commissioner there is nothing to impute by way of a categorical assertion the conspiring of, or an express omission or commission, leading to the fraud on the part of the appellant. There is nothing in the findings of the learned Commissioner to assert a positive role or to impute abetment on the part of the appellant in the attempt to smuggle out Red Sander Wood. Thus, in view of anything specific on the part of the appellant being brought on record, it would be completely inap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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