Document Fragment View
Fragment Information
Showing contexts for: attempt to export in Shri G.Masilamani vs The Commissioner Of Customs on 27 August, 2018Matching Fragments
4. The appellants preferred appeals before the Tribunal as against the order of the Commissioner of Customs. The appeals filed by the appellants herein and the appeal filed by one Mr.P.Ashok Kumar, who was noticee No.7 in the said show cause notice, were taken up together and by a common order dated 12.5.2017, the appeals were dismissed. Challenging the same, these appeals have been filed raising the the following substantial questions of law :
Common questions in all the appeals :
(1) Whether there is scope for imposing penalty under Section 114 of the Customs Act, 1962 in the absence of any knowledge and specific role on the part of the appellants and the appellant firm of the offence alleged to have been committed by some other person ? And (2) In the absence of any evidence whatsoever to hold that the appellants had knowledge or actively participated in the attempted export of red sander logs, is the Tribunal right in holding the appellants as abettors ?
Additional question in CMA.No.1902 of 2018: Whether the Tribunal is correct in upholding the penalty on the proprietor as well as the proprietary firm under Section 114 of the Customs Act, 1962 on the very same grounds ?"
5. Mr.S.Murugappan, learned counsel for the appellants submits that there is absolutely no evidence to establish the role of the appellants in the act of smuggling of red sander logs and in such circumstances, penalty under Section 114 of the Act cannot be imposed. It is further submitted that Mr.G. Masilamani the appellant in CMA.No.1901 of 2018 did not file the shipping bill, but it was filed by one M/s.T.Shanmugasundaram, which was the CHA, in the name of one M/s.A.S.P.Senna Traders and even according to the Department, the brain behind the attempted export is one Mr.Hemadri, who could not be traced by the Department, as he was absconding. It is pointed out that the Department has not taken effective steps to trace the said Mr.Hemadri, though he had filed petitions seeking anticipatory bail before both the Sessions Court as well as this Court and later, withdrew the petitions.
6. It is also submitted by the learned counsel for the appellants that the said M/s.Transquare Clearing and Forwarding only arranged for the containers and therefore, no penalty could have been imposed on the other appellants and the common order passed by the Tribunal is wholly unsustainable. It is further submitted that the Tribunal did not consider the grounds raised by the appellants and merely based on assumptions and presumptions, the Tribunal confirmed the findings of the Commissioner of Customs. According to the learned counsel, the Tribunal failed to take note of the important fact that there is no material evidence to connect the appellants with the smuggling activity. It is also submitted that there is no scope for imposing penalty under Section 114 of the Act in the absence of any knowledge and specific role on the part of the appellants in the offence alleged to have been committed by some other person. Thus, in the absence of any evidence to hold the appellants had knowledge or actively participated in the attempted export of red sander logs, the Tribunal fell in error in holding that the appellants had abetted the offence.
16. The Tribunal also found that the said Mr.G.Masilamani and the said Mr.V.Sundaramoorthy, without having the CHA licence, which was suspended due to non payment of service tax of Rs.6 Crores, deliberately used the licence of the said M/s.T.Shanmugasundaram, CHA and filed the shipping bill involving their freight forwarding concern namely the said M/s.Transquare Clearing and Forwarding deliberately in the name of the said M/s.A.S.P.Senna Traders by using their IEC to defraud the Customs. The Tribunal further found that the live consignments and the past consignments were dealt by all of them following such modus operandi with oblique motive to make undue gain at the cost of the Customs. It was also fund that incidence of seizure of red sanders by the investigation brought out the role of the smuggling racket, of which, the appellants were members, that the plea of the appellants that they were innocent was rejected for having not brought out the illegal act of the said Mr.Hemadri to the knowledge of the Customs and that instead of doing so, all of them had concerted effort to deceive the Customs and the so called exporter disowned the consignment, which was attempted to be exported. Thus, the Tribunal concluded that the appellants acted in connivance with the racket till the offending container was seized by the investigation resulting in the discovery of smuggled goods and that they could not lead any evidence to prove their detachment to the attempted export of the offending goods.