- (1.) THIS petition is directed against the order dated 21.10.2013 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi ('the Tribunal') on the prayer made by the present petitioner for waiver of the condition of pre -deposit in the appeal filed under Section 129 of the Customs Act, 1962 whereby, the Tribunal directed the petitioner to deposit an amount of Rs.30,00,000/ - within four weeks from the date of the order against the impugned demand of penalty in the sum of Rs.50,00,000/ -; and ordered that upon compliance, there would be waiver of deposit of the balance amount.
(2.) THE matter herein being related only with the quantum of the amount involved in the prayer for waiver of the condition of pre - deposit, we do not propose to deal with the merits of the case and hence, dilatation on all the factual aspects is not necessary. Only a brief reference to the relevant background aspects of the matter would suffice. The Order -in -Original No.4/2013 dated 12.03.2013 came to be passed by the Commissioner of Customs, Jodhpur with reference to the show cause notices issued to 8 persons/entities following the investigation made in the matter of the goods cleared for export by one M/s Mehar Traders, K -170, Durgadas Colony, Baldev Nagar, Masuria, Jodhpur from ICD, Jodhpur to the overseas buyer in Dubai. The Department called back the container carrying the exported goods to Mundra Port and on examination, found the same stuffed with Red Sander Logs, an item prohibited for export, instead of the items declared in the shipping bill and the export documents. In the matter under investigation, the Department alleged that several persons were involved in different capacities; and, in the process, also alleged that the petitioner, working as H&T Agent of M/s RAJSICO, failed to exercise due diligence in not enquiring the KYC norms and name and owner of a trailer bearing registration number GJ 18T 1012, through which, the prohibited goods were allegedly transported and that facilitated their stuffing in the container. The Commissioner held the petitioner liable, inter alia, with the following observations: - "......It is on record that the noticee instead of fulfilling their obligations as freight forwarder to safely deliver the customs sealed cargo to gateway port has unauthorisedly handed over the customs cleared cargo to unauthorized persons who tempered with the seal and replaced the export cargo with prohibited goods. It is on record that the customs cleared cargo was given in the custody and control of noticee for transport to gateway port showing a great amount of trust on them. However, the noticee has betrayed that trust by permitting the third party to hold the custody and transport of the export cargo, which was replaced by prohibited goods. Thus, it is clear that by doing aforesaid unauthorized and illegal acts, they were instrumental in facilitating the smuggling of red sanders wood out of country to the exporter. It is clear that the noticee acted in contravention of the provisions of Regulation 6(i), (k) and 6(2) of Handling of Cargo in Customs Areas Regulations, 2009. Thus I have no doubt while holding that M/s Max Shipping and Forwarders P Ltd. are guilty of abetment of smuggling of red sanders and are liable for penalty under section 114(i) of Customs Act 1962."
(3.) IN view of the above, the Commissioner proceeded to impose a penalty in the sum of Rs.50,00,000/ - on the petitioner -Company under Section 114(i) of the Customs Act, 1962. The petitioner has filed an appeal against the aforesaid order dated 12.03.2013 before the Tribunal with the contentions, inter alia, that the findings returned in the order are beyond the allegations levelled in the show cause notice; that the findings are based more on assumptions rather than on cogent material; that the Department has failed to trace the alleged master mind of smuggling and has unnecessarily attempted to shift the burden on the petitioner who had no role in handling and transportation of the container to the exporter; that the imposition of penalty is not justified; and that in any case, the quantum of penalty is highly excessive and is not commensurate with the gravity of offence, if any.;