Madras High Court
S.Emmanuvel Philip M/A 32 Years vs The Additional Commissioner Of Customs on 5 December, 2024
Author: C.Saravanan
Bench: C. Saravanan
W.P.No.18842 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.12.2024
CORAM
THE HON'BLE MR JUSTICE C. SARAVANAN
W.P.No.18842 of 2022
and
W.M.P.Nos.18196 and 18195 of 2022
S.Emmanuvel Philip M/A 32 years,
S/o. Selvaraj,
Senior Manager – Sales,
M/s.Awardlink Logistics India Pvt. Ltd.,
Unit No.14, III Floor, New No.31,
Thiru.Vi.Ka Road,
Royapettah,
Chennai – 600 014. ... Petitioner
Vs.
The Additional Commissioner of Customs,
Office of the Commissioner of Customs, Chennai-IV Commissionerate,
60, Rajaji Salai,
Cutoms House,
Chennai - 600 001. ... Respondent
Prayer:Writ Petition filed under Article 226 of the Constitution of India, to
issue a writ of certiorari to issue a writ of certiorari or any other appropriate writ,
direction or order in the nature of a writ calling for the records of the
Respondent relating to the order in F.No.ADJN/DRI/CZU/18/2021-CH-IV dated
1/7
https://www.mhc.tn.gov.in/judis
W.P.No.18842 of 2022
30.03.2022 (Order No.29194/2022) to quash the same in so far as it relates to
the petitioner herein.
For Petitioner : Mr.P.Rajendiran
For Respondent : Mr.K.Mohanamurali
Sr. Panel Counsel
ORDER
In this writ petition, the petitioner has challenged the impugned Order-in-
Original No.89194 of 2022 dated 30.03.2022. By the impugned order, the de mand proposed in show cause dated 11.05.2021 bearing No. F.No.ADJN/DRI/CZU/18/2021-CH-IV seeking to impose penalty on the petitioner under Section 114 of the Customs Act, 1962 has been confirmed.
Relevant Para Nos.34 and 63 read as under:-
“34.00. Notice No. 6, Shri S. Emmanuel Philip, Sr. Man ager, M/s. Awardlink Logistics India Pvt. Ltd., and Noticee No. 7, M/s. Awardlink Logistics India Pvt. Ltd. vide written submis sion dated 21.06.2021 and Ms. K. Nancy in personal hearing dated 28.10.2021 had submitted that their clients are engaged in logistics business. They provide assistance in clearance of LCL and FCL cargo. arrange for container booking. She has stated that as seen from the show cause notice it is clear that one Mr. Manikandan and Mr. Antony Swamy are the main persons in volved in alleged export of red sand/armature shafters. The no ticee has played only limited role in booking the containers from one M/s. RCI Agencies East India Pvt. Ltd. In the entire show cause notice there is no evidence to establish that the noticee had any active role or involvement by way of abetment, collu 2/7 https://www.mhc.tn.gov.in/judis W.P.No.18842 of 2022 sion, etc. in the attempted export of red sand/armature shafters by filing shipping bill in the name of M/s. 1M Gears Pvt. Ltd. With regard to use of the ID and Password of M/s. AFS Logistics International Pvt. Ltd. for generation of Form-13, she stated that that through that company staff only Mr. Emmanuel Philip ob tained the details and after informing the need for their help, Form-13 was generated as their clients did not have the neces sary Password and ID. In the normal course, it is not possible for our clients to obtain the ID and Password of M/s.AFS Logis tics International Pvt. Ltd. unless the person in their organiza tion has made available these details to them. Further she quot ed the case laws mentioned in their reply and also reiterated the submissions made in the reply. Based on the above submissions she requested to drop the proceedings against our clients. Scanned copy of the reply also was forwarded separately for ready reference.
They have relied upon various cases/ judgments viz., (i) Fast Cargo Movers Vs. Commissioner of Customs, Jodhpur 2018 (362) E.L.T. 184 (ii) Skyline Shipping& Logistics Vs. Commissioner of Customs, Chennai reported in 2010 (262) E.LT. 985 (iii) Maheshwari Rocks (1) Pvt. Ltd. Vs. Commissioner of Customs, Chennai 2010 (262) E.LT. 574, and
(iv) Neptune Cargo Moves Pvt. Ltd. Vs. Commissioner of Customs (Exports), Chennai 2007 (219) E.L.T. 67.
63.00. I have carefully gone through the submissions detailed in Para 33.00 above and the statement in Para 47.00 above. I find that the case laws submitted by the notice are not relevant to this case as facts and circumstances of this case are different that those of the said case laws. From the above, I find that Shri Emmanuel Philip, Sr. Manager of M/s. Awardlink Logistics India Pvt. Ltd., Chennai had arranged container to the third party Shri Sathish Kumar in a casual manner through M/s. RCL Agencies East India Pvt. Ltd., who neither verified the Exporter/IEC holder nor ascertained the authenticity of Shri 3/7 https://www.mhc.tn.gov.in/judis W.P.No.18842 of 2022 Sathish Kumar in the subject case, if verified the same they could have easily avoided the business reference from Shri Sathish Kumar. Further it appears that in every export consignment CHA used to file the Form-13/EIR through their PORT User Account, but, in the subject case the same was filed by Shri Emmanuel Philip through M/s.AFS Logistics International Pvt. Ltd. (C564) User ID & Password without the knowledge of the Directors of M/s. AFS Logistics International Pvt. Ltd., for the movement of the subject container further to the entry of CITPL port, which eventually helped the smugglers for this act of smuggling of red sand/armature shafters logs out of India.
Therefore, I hold that from the above acts of omission and commission, Shri Emmanuel Philip, Sr. Manager of M/s. Awardlink Logistics India Pvt. Ltd., Chennai, is liable for penalty under Section 114 of the Customs At, 1962.”
2. It appears that the petitioner was employed as a Senior Manager in Awardlink Logistics India Private Limited, which had attempted to export red sand/armature shaft which is a prohibited item as the export of red sand/armature shaft is banned. The order impugned records the submission of the petitioner in para 34.00 and has come to a conclusion in para 63, as extracted above.
3. The petitioner has an alternate remedy by way of an appeal before the Commissioner of Customs (Appeals). However, instead of filing of an appeal, 4/7 https://www.mhc.tn.gov.in/judis W.P.No.18842 of 2022 the petitioner is before this Court. The only ground on which the petitioner, has challenged the impugned order is that the petitioner has no direct role to play in the alleged export of red sand/armature shaft and that the petitioner has been made a scape goat.
4. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Sr. Panel Counsel for the respondent. I have also perused the impugned order which has confirmed the penalty of Rs.2/- Crores under Section 114 of the Customs Act, 1962 on the petitioner.
5. Even if the role of the petitioner in the alleged illegal export of red sand/armature shaft is confirmed, the imposition of penalty of Rs.2/- Crores, on a Senior Manager cannot be countenanced as it appears to be disproportionate with the gains that the petitioner would have made from the alleged in volvement in the export of red sand/armature shaft. Therefore, the impugned or der is set aside insofar as imposition of penalty under Section 114 of the Cus toms Act, 1962 on the petitioner and the case is remitted back to the respondent to pass a fresh order on merits taking note of the financial position of the petitioner and the purported gain the petitioner would have made from the 5/7 https://www.mhc.tn.gov.in/judis W.P.No.18842 of 2022 alleged involvement in the export of the contraband goods. This exercise shall be carried out by the respondent within a period of three (3) months from the date of receipt of copy of this order. The petitioner may give additional submissions if any before the final orders are passed. This writ petition stands disposed with the above. No costs. Connected Miscellaneous Petitions are closed.
05.12.2024
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case: Yes/No
nst
To:
The Additional Commissioner of Customs,
Office of the Commissioner of Customs, Chennai-IV Commissionerate, 60, Rajaji Salai, Cutoms House, Chennai - 600 001.
C.SARAVANAN, J.
nst 6/7 https://www.mhc.tn.gov.in/judis W.P.No.18842 of 2022 W.P.No.18842 of 2022 and W.M.P.Nos.18196 and 18195 of 2022 05.12.2024 7/7 https://www.mhc.tn.gov.in/judis