Custom, Excise & Service Tax Tribunal
M/S. Lufthansa Cargo Ag vs Cc, Hyderabad on 4 January, 2011
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench SMB
Court II
Date of Hearing: 04/01/2011
Date of decision:04/01/2011
Appeal No.C/35/10
(Arising out of Order-in-original No.21/2009-Adjn.-Cus dt. 28/10/2009 passed by CCE,C&ST, Hyderabad)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Lufthansa Cargo AG
..Appellant(s)
Vs.
CC, Hyderabad
..Respondent(s)
Appearance Mr. Lalit Mohan Chandana, Consultant for the appellant.
Mr. K.S. Chandrasekar, JDR for the Revenue.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) FINAL ORDER No._______________________2011 Per M.V.Ravindran This appeal is directed against the Order-in-original No.21/2009-Adjn.-Cus dt. 28/10/2009.
2. Relevant facts that arise for consideration are that the appellant herein had scheduled flight on 23/10/2009 with original route "FRA-RUH-Bombay - Bangkok - Hong Kong". The said flight was diverted to Hyderabad due to technical reasons and the cargo destined to Bombay was taken to Hyderabad. The aircraft landed in Hyderabad on 2020 hrs. on 23/10/2009. Since the aircraft was further required to proceed to Bangkok and Hong Kong, the carrier-the appellant unloaded the cargo destined to Bombay at Hyderabad Airport and informed the Customs authorities at around 0143 hrs on 24/10/2009. The Customs authorities were of the view that the appellant had not kept the Department informed about the non-filing the Import General Manifest (GM) and were of the view that the goods are liable for confiscation under Section 111(f) of the Customs Act, 1962. The appellants contested before the adjudicating authority that the goods which were unloaded at Hyderabad International Airport was due to emergency and due to technical reasons the flight was diverted from Bombay. They filed the IGM and Bill of Entry before the Customs authorities at Bombay. They would submit that they unloaded goods due to emergent situation at Hyderabad, the goods were to be unloaded under the situation wherein they could not inform the proper officer for supervision of the unloading. The adjudicating authority did not accept the contentions and came to the conclusion that the goods are liable for confiscation under Section 111(f) and 111(g) of the Customs Act, 1962 but allowed the same on payment of redemption fine of Rs.2 lakhs under Section 125 of the Act. He also imposed penalty of Rs.1 lakh under Section 112(a) and a further penalty of Rs.25,000/- under Section 30 of the Act. Hence this appeal.
3. Ld. Consultant would submit that the goods which have been confiscated were further sent to the destination. He would submit that the entire exercise had to be undertaken by the appellant due to an emergency and technical reasons for diversion of the flight from Bombay to Hyderabad. He would submit that the adjudicating authority himself in the order-in-original has come to a conclusion that the non-filing of manifest by the appellant was due to human error and no malafides can be attributed to them. It is his submission that despite such findings, the adjudicating authority has imposed substantial penalties on them and he would submit that the goods were not liable for confiscation.
4. Ld. DR would submit that the appellant could have informed the Customs officers on duty on 23/10/2009 regarding the unloading of the goods at 2020 hrs. He would submit that they did not do so and they filed IGM at 0143 hrs. on 24/10/2009 after being directed to do so. He would submit that they should have informed the officer when the goods are transshipped. In the absence of any manifest, confiscation of the goods and penalty imposed are correct.
5. I have considered the submissions made by both sides and perused the records.
6. It is undisputed that the landing of the "FRA-RUH-Bombay - Bangkok - Hong Kong" flight of the appellant at Hyderabad was due to technical reasons. It is also on record that none of the goods was unloaded at Hyderabad airport from the aircraft were meant for Hyderabad airport. Ld. Adjudicating authority in his order-in-original in para 11 has recorded the following findings:-
"11. I find that unloading of un-manifested cargo without the supervision of the proper officer and delay in filing the manifest by the carrier is purely due to human error and no malafides can be attributed on them. It is also noticed that the goods have been verified by the duty officer immediately on information. Considering all these factors I intend to take a lenient view in the matter but I am not acceding to the request of the carrier for transshipment, as there are certain dangerous goods in the cargo."
7. It can be seen from the above findings that the adjudicating authority has himself held that action of appellant of unloading cargo at Hyderabad was due to human error and no malafides can be attributed. If it is the findings, in my considered view, the penalty imposed on the appellant under Section 112(a) and 112(b) of the Customs Act, 1962 is excessive. Since the appellant has themselves taken into themselves the unloading of the goods without the supervision of the officers, in my view, they should be penalized. But the penalty imposed under Section 112 of the Act is excessive, I reduce it to Rs.25,000/- (Rupees twenty five thousand only).
8. As regards the penalty of Rs.25,000/- imposed under Section 30 of the Act, in my considered view, this penalty is unwarranted as the appellant has informed the Department his intention that the goods were to be unloaded at Hyderabad as they were not able to unload at Bombay. In view of the above, the penalty imposed under Section 30 of the Act is set aside. Subject to such modification, the appeal is allowed in above terms.
(Pronounced and dictated in open court) (M.V.RAVINDRAN) MEMBER (JUDICIAL) Nr 5