Custom, Excise & Service Tax Tribunal
M. Younus Ali vs Commissioner Of Customs (Export), ... on 18 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. C/144/2012
(Arising out of Order-in-Original No. 18623/2012 dated 31.3.2012 passed by the Commissioner of Customs (Seaport Export), Chennai)
M. Younus Ali Appellant
Vs.
Commissioner of Customs (Export), Chennai Respondent
Appearance Ms. S. Janani Rajalaxmi, Advocate for the Appellant Shri R. Subramanian, AC (AR) for the Respondent CORAM Honble Shri D.N. Panda, Judicial Member Date of Hearing / Decision: 18.11.2016 Final Order No. 42270 / 2016 Learned counsel pleads innocence of this appellant submitting that he was not concerned with the red sanders attempted to be exported from India but having filed the export papers faced penalty of Rs.1,00,000/- imposed under section 117 of Customs Act, 1962 for no reason. There is no evidence gathered by customs to prove intimate connection of the appellant with the smuggling alleged. The appellant being a CHA, should not face such an exorbitant penalty in absence of his conscious involvement in the allege attempt to export.
2. On the other hand, learned AR submits that a racket of red sander operated smuggling thereof and with the connivance of this appellant, attempted export of red sander logs which is a prohibited goods and were brought to record by Customs. This appellant was an active member of such racket. Learned adjudicating authority very succinctly brought out role of the appellant in attempted export for which he does not deserve any consideration for reduction of penalty.
3. Heard both sides and perused the records.
4.1 Association of this appellant with the racket of the smugglers could not be disassociated by the appellant without any cogent and credible evidence to prove his innocence. He received a consideration of Rs.10,000/- for filing forged and fabricated documents using the IE Code of a different person Customs brought out association of this appellant with the racket. All such allegations could not be refuted by appellant except the plea of innocence.
4.2 The duty of a CHA is very significant since a CHA works in the customs area which is very sensitive. Law has casted responsibility on the CHA to ascertain every detail of the import or export before filing the respective document for clearance. The adjudicating authority brought out how this appellant was instrumental in the attempted export of red sanders filing Shipping Bill No. 3538631 dated 5.11.2009 using a IE code of another concern.
5. The red sanders were found in the export consignment being hidden in the container and the contents of the container were mis-declared. When the department noticed that there was no claim of incentive for export, and the goods declared were leather chemicals (synthetic tanning agent under Invoice No. 35/09-10 dated 4.11.2009) consigned to M/s.Gensal Singapore Pte. Ltd, examination of container No. MSCU-2049109 revealed that 545 red sander logs totally weighing 16.060 MTs were concealed therein which were seized on 9.11.2009.
6. Investigation also found that the racket of smugglers of red sanders were involved in the export made through shipping Bill 3525348 dated 22.10.2009 and Shipping Bill No. 3538629 dated 5.11.2009. Learned adjudicating authority upon examination of the entire material before him noticed that this appellant could not detach himself from the deal of attempted export of the red sanders. He therefore imposed penalty on several persons. Revenue says that two of the masterminds i.e., Satish Babu and Sai Senthil Kumar came in Appeal No. C97 & 98/2012. But their appeals were dismissed on 3.7.2014 for non-compliance to the stay order.
7. Para 43.2 of the adjudication order reveals that the appellant made contacts with the members of the racket for a consideration of Rs.10,000/- to attempt export of red sanders. It cannot be said that the appellant was not aware of the contents of the container and what the goods to be exported. He has no answer when the IE Code was found to be of some other person and there was mis-declaration in the exporting documents. Custom was defrauded. It may be noted that a person working in customs area is never an innocent since customs area is a sensitive place and they are responsible for each and every act they do in that area. So also CHALR, 2004 has expectation from the CHA that he should not act contrary to law or make breach of Customs law. His knowledge to smuggling is imputable when he submitted false and fabricated document using IE code of another. Appellant could not come out from such misdeed with any defense. Even today, except the plea of innocence, there is no cogent and credible evidence led to prove innocence. Therefore, there is no scope to grant any relief. The appellant only earnestly prays that with lot of difficulties Rs.85,000/- has been deposited against pre-deposit order and following the decision of the Honble Madras High Court in the case of Commissioner of Customs Vs. I. Sahaya Edin Prabhu Patriot Freight Logistics Systems & Anr. 2015-TIOL-212-HC-MAD, he may be exonerated.
8. The judgment cited by learned counsel was on the finding of Tribunal that no positive role of the CHA found and penalty under section 114(i) of Customs Act, 1962 was imposed in that case. In the present case, there is a penalty under section 117 of Customs Act, 1962. In this case active role of appellant in the attempted export is on record and that could not be ruled out by appellant demolishing fraudulent document filed by appellant using IE code of another. The penalty under Section 117 is stricter than Section 114 penalty. Any dereliction in duty by the CHA calls for penalty under the residuary provisions of Section 117 of Customs Act, 1962. The adjudicating authority noticing that the appellant was a member of the racket having received the consideration of Rs.10,000/- to abett smuggling he rightly imposed penalty of Rs.1,00,000/- under section 117 of Customs Act, 1962. From the facts and circumstances, conscious involvement of the appellant with the smuggling racket is proved. Therefore there is no need to interfere with the order passed by learned adjudicating authority. Otherwise, that shall send a message to the society that infringement of law is rewarded with a bonus of waiver of penalty or a lesser penalty to perpetuate fraud. Accordingly, appeal is dismissed.
9. To pass the order above, we are guided by the decision of Honble High Court of Himachal Pradesh in the case Commissioner of Central Excise Vs. International Cylinders Pvt. Ltd. 2010 (255) ELT 68 (HP) and that of the Honble High Court of Madras in the case of Alagappa Cements Pvt. Ltd. Vs. CEGAT, Chennai 2010 (260) ELT 511 (Mad.).
(Dictated and pronounced in open court) (D.N. Panda) Judicial Member Rex 5