S. CHANDRASEKARAN Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THESE appeals arise from same set of facts and hence are being considered together in this proceeding. Three of the appeals are filed by individuals who were involved in export of a consignment of red sanders wood, an item prohibited for export out of India, from Tuticorin port to Malaysia. Against these persons, the adjudicating authority had imposed penalty of Rs. 10,00,000 each in a common adjudication order. In an appeal, the Commissioner (Appeals) has reduced these penalties to Rs. 3,00,000 on Shri Chandrasekhar and Rs. 3,00,000 on Rama Theena Thayalan and Rs. 2,00,000 on Shri G. Ravi by different orders -in -appeal. The individuals concerned have filed appeals challenging the penalties upheld by the Commissioner (Appeals) and the Revenue has appealed for increasing the penalties imposed by the Commissioner (Appeals). Therefore, all these appeals are being considered together. The facts involved in these cases are as follows : shipping bill No. 1955099, dated July 9, 2008 was filed in the name of M/s. Kumari Coir Products, 1/1, Sree Ramapuram, Anna Nagar, Panagudy, Tirunelveli District, for export of cargo declared to be "coco peat" to M/s. Selangor Fertilizer, SDN, BHD, Kuala Lumpur, Malaysia. Shri S. Chandrasekhar was the proprietor of M/s. Kumari Coir Products. The Directorate of the Revenue Intelligence received information about smuggling of red sanders wood, an item prohibited for export from India, in the said consignment. By the time they could locate the consignment, the container had already sailed to Malaysia on July 14, 2008. The subject container was immediately recalled and the container arrived at Tuticorin port on August 10, 2008. In the meantime, Malaysian customs had opened the subject container and on examination, it was found that the container was fully stuffed with red sanders wood. Malaysian customs sent back the container to Tuticorin after putting a one time seal No. 176853 and the same was endorsed vide their note dated July 31, 2008.

(2.) THE Directorate of Revenue Intelligence, conducted further investigations, and it was found that one Shri George, S/o. Rathinasamy, residing at No. 6E, Selvitzer first street, Tuticorin 628002, had played the main role in the illicit export of the said prohibited goods. He had contacted M/s. Kumari Coir products had offered consideration to Shri S. Chandrasekhar, the proprietor of the firm, to allow Shri George to use the name and import export code of M/s. Kumari Coir Products to export coco peat, and made all arrangements such as (i) procurement of the declared cargo, (ii) stuffing of the declared cargo under Central excise supervision, (iii) using the import export code of M/s. Kumari Coir Products, (iv) engaging the customs house agent for customs clearance work and for booking the container (v) transportation of the goods and made payments for all these works. It appeared that Shri Muthu, manager -cum -driver of the lorry TN 23 0420 had played a vital role in tampering the stuffed and sealed container on its way from the factory to Tuticorin port and replacing the cargo with red sander woods and transporting it to Tuticorin port. Efforts to trace the whereabouts of these two persons failed, further investigation in respect of these two persons was not done. Under the adjudication order, penalty of Rs. 20 lakhs was imposed on Shri George and Rs. 10 lakhs was imposed on Shri Muthu. Further, there a penalty of Rs. 10 lakhs was imposed on Shri R. Srinivasan who obtained signatures from Shri Ravi for filing the shipping bill. However, at present, these persons, namely, Shri George, Shri Muthu and Shri R. Srinivasan appear to have not taken the matter in appeal to the Commissioner (Appeals) and their cases are not before the Tribunal.

(3.) THE next appellant is Shri Rama Theena Thayalan, proprietor of M/s. Vector Freight Forwarders, Tuticorin, the customs house agent, whose name was used for filing the concerned shipping bill. Shri Rama Theena Thayal, had a standing arrangement of giving blank signed annexure A forms to be filed for export of goods to Shri G. Ravi and he had taken Rs. 1,00,000 as deposit from G. Ravi for this and had also got profit share of Rs. 70,000 from Shri Ravi. He stated that he had no knowledge of the shipping bills filed by G. Ravi for export of goods of M/s. Kumari Coir Products. Shri Rama Theena Thayal, failed to exercise due diligence as prescribed in the Customs House Agents Licensing Regulations, 2004, and thus resulted in export of prohibited goods from the country by an unscrupulous person. So penalty under section 114(i) of the Customs Act and 117 of the Customs Act were proposed in the show -cause notice against this appellant.