“X’ is a transport agent who arranged a truck for the export and “Y” acted as Customs Broker for clearance of the goods and “Z” arranged Customs broker and Ocean freight. ( herein after called as the parties )
The goods were
stuffed at factory in the presence of Director
of the exporter company and Superintendent of Central Excise ( year 2014 case )
and thereafter it was sent to Port for exportation. Post
sailing of vessel, DRI came to know that Red sanders illegally shipped hence
container was called back to India.
Customs Dept. imposed
personal penalty under
Section 114(i) of the Customs Act on the X,Y & Z ( i.e transporter
and Customs Broker and other party ) also. Is it tenable ?
No. The parties have rendered their routine
service of arranging for container and Customs clearance service to earn for
their livelihood within the bounds of law. During the
investigation, DRI recorded the statement of Director of exporter company and
also the parties . In the statement shipper has clearly stated that he was
responsible for smuggling of red sander wood logs and the others were not knowing
about their smuggling plan.
Further Customs authorities
in their orders have admitted that there is no direct proof of the complicity
of the parties and there is suspicion against each of them and on the basis of
that suspicion penalty imposed on them.
In the case of Collector of Customs, Madras and others Vs. D. Bhoormull wherein the
Apex Court has observed that “ the law does not require the prosecution to
prove the impossible. All that it requires is the establishment of such a
degree of probability that a prudent man may, on its basis, believe in the
existence of the fact in issue”
SECTION
114. Penalty for attempt to export goods improperly, etc. - 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, -
(i) in the case of
goods in respect of which any prohibition is in force under this Act or any
other law for the time being in force, to a penalty not exceeding three times
the value of the goods as declared by the exporter or the value as determined
under this Act, whichever is the greater;
It is pertinent to
note that the Tribunal in various decisions consistently held that for imposing
the personal penalty under Section 114(i) of the Customs Act, 1962, there
should be acceptable legal evidence on record about the acts of commission or
omission by the parties. Further, in order to hold that the parties has abetted
in the commission of the offence, there has to be a knowledge on the part of
the parties regarding the illegal
activities of the exporter whereas in the present case no corroborative
evidence has come on record which pinpoint that the parties had the knowledge
of the illegal activities of the exporter company.
The impugned order
is not sustainable in law & penalty also set aside.
SACHIN KUMAR ( Transport agent ) VERSUS Commissioner of Customs MANGALORE, CESTAT
BANGALORE, decided on 14.09.2020
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