9911796707
TMI Blog2024 (10) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd and the examination revealed that the said container was stuffed with PP bags filled with feldspar powder in the front and wooden logs, later identified as red sanders. On examination, 295 PP Bags containing 14,750 kgs of feldspar powder (valued at Rs.93,456/-) and 12120 kgs of red sanders valued at 5,45,40,000/- were found. 1.2 After detailed investigation show cause notice dated 14.08.2019 was issued to various co-noticee including present appellants proposing confiscation of the goods i.e. "red sander" and "feldspar powder" and also imposition of penalties under various sections on various persons including the present appellant. The said show cause notice was adjudicated wherein the penalty of Rs. 20 Lakhs under Section 114 (i) and Rs. 60 Lakhs under Section 114 AA of the Customs Act, 1962 were imposed on Shri Rahul Mishra and penalty of Rs. 50,000 under Section 114 (i) was imposed on Shri Sandeep, Inspector Customs. Being aggrieved by the said OIO, the appellants filed the present appeals. 2. Shri Devashish Trivedi, Learned Counsel appearing on behalf of the appellant Shri Sandeep, Inspector customs submits that in the entire case the penalty was imposed admittedly for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rketing activities and assistant Shri Jitendra Sharma, in docks stuffing and KYC documents collection and the appellant was never assigned the job of customer on the basis of KYC documents. Further, no show cause notice was ever issued to the CB for failure in this regard as such there was no breach on this count. 2.4 He submits that the documents for preparing the check list for shipping bill was not received by the appellant on his personal mail ID in as much as the said documents were received by their CB company on mail ID at [email protected] This fact is duly corroborated by shri Jitendra Sharma. Moreover, the shipping bill was also filed on EDI system by their Mumbai office and as such he had no role in preparing the shipping bill. He further submits that both Shri Jitendra Sharma, colleague of appellant and Shri Ooni Rajan Pillai, Director of CB firm has categorically stated that shri Jitendra Sharma looked after docks stuffing. thus, the appellant have never had any control over stuffing of the containers. However, instead of probing the role of shri Jitendra Sharma and Director of CB firm the officers coerced the appellant into giving self incriminating statement be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. The case was detected only on the intelligence received by the DRI. In such case in absence of any intelligence, the appellant was not aware about the concealment of red sander under the bags of feldspar powder. It is also found that when Shri Sandeep, Inspector Customs examined the containers after opening it at that time only feldspar powder was found. Therefore, he was of bona fide belief that the goods stuffed in the containers is feldspar powder. In the normal course it cannot be expected by any one that behind the feldspar powder bags some other goods are concealed. Therefore, we find no involvement of the appellant in the abetment in smuggling of Red Sander. Accordingly, the penalty under Section 114(i) of Customs Act, 1962 was wrongly imposed on the appellant. In the facts of this case the ratio of the following judgment applies : - a) In the case of Eureasian Equipment and Chemicals Ltd (Supra) the Hon'ble Calcutta High Court has passed the following order:- "24. It is quite clear that violation of any prohibition or restriction imposed under Section 12 of the Foreign Exchange Regulation Act, 1947 will result in a violation of the prohibition or restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in no way dependent and has not been made dependent on the possibility or feasibility of actual confiscation of the goods. This accrued liability of the goods to confiscation clearly attracts Section 114 of the Customs Act which provides that any person who in relation to any goods, does or omits to do any act, which act or omission would render such goods liable to confiscation under Section 113 or abets the doing or omission of such an act, shall be liable to penalty as provided in the said Section. With the incurring of liability of the goods to confiscation under Section 113, any person who in relation to such goods has done or omitted to do any act which at or omission has rendered such goods liable to confiscation under Section 113 or abets the doing or omission of such an act, renders himself liable to penalty under Section 114. On a proper construction of Sections 113 and 114 of the Customs Act with reference to the language used in the said Section this position, in our opinion, clearly emerges. We fail to appreciate how the accrued liability of the goods to confiscation with the attempt made for exporting the same contrary to prohibition is extinguished or wiped out wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this count. Therefore, the appellant's alleged offence is not established. It is also fact that the documents were preparing the check list for shipping bill was not received by the appellant on his personal mail id in as much as the said document were received by their custom broker company on mail id at [email protected]. 6.1 It is the submission of the appellant that even the shipping bill was also filed on EDI system by their Mumbai office and as such he had no role in preparing the shipping bill. We find that the employee of CB firm Shri Jitnedra Sharma, is a colleague of the appellant, has also stated that Shri Jitendra Sharma looked after dock stuffing. This shows that the appellant had no control over the stuffing of the containers. It is the claim of the appellant that the appellant was coerced into giving self incriminating statement because appellant had presented the container before the officer. It is their submission that it was not the job of the appellant to look after the stuffing and appellant has no reason to agree with any person including Shri Paras Patel to deal with the documents mis-declaring the goods and container stuffed with such mis-declared good ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
