Custom, Excise & Service Tax Tribunal
M/S.Cma Cgm Agencies (I) Pvt. Ltd vs Cc (Port Import), Chennai on 4 July, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCH
CHENNAI
C/41091 - 41092/2015
[Arising out of Order-in-Appeal No. 207 to 210/2014 dated 21.11.2014 passed by the Commissioner of Customs (Appeals-II), Chennai).
M/s.CMA CGM Agencies (I) Pvt. Ltd. : Appellants
Versus
CC (Port Import), Chennai : Respondent
Appearance:
Dr.SunitaSundar. R, Advocate, For the Appellant Shri L. Paneerselvam, AC (AR) For the Respondent CORAM :
HonbleShriP.K. Choudhary, Judicial Member Date of Hearing : 23.06.2016 Date of Pronouncement : 04.07.2016 FINAL ORDER No.41062-41063/2016 M/s. CMA CGM Agencies (I) Pvt. Ltd., the appellant herein is the steamer delivery agent of the liner and complied with the provisions of Customs Acts and Rules, statutory regulations and public notices issued under the Foreign policy for imports. The subject Bill of Lading No. SC1251769 dated 10.02.2014 has been issued at Port Victoria with the port of discharge at Chennai. The imported consignment was declared as Non Alloy Steel Melting Scrap HMS 1&2 vide Bill of Entry No. 4920206 dated 17.03.2014 of declared assessable value of Rs. 17,77,907/- and B/E No. 4920088 dated 17.03.2014 of declared assessable value of Rs. 16,18,351/-. As per the Import Policy, each consignment should be accompanied by Pre-shipment Inspection Certificate (PSIC). The show cause notice was issued by the respondent for alleged violation of having filed an invalid PSI Certificate. It was also found that the declared value of the impugned goods was low and with the acceptance of the importer it was enhanced from USD 350 (CIF/Mt)to USD 415 (CIF/ Mt). The SCN proposed confiscation of the goods under Section 111 (d) of the Customs Act, 1962 and to levy penalty under Section 112 (a) of the Act read with Circular No. 56 /2004 dated 18.10.2004. On adjudication, the LAA confiscated the goods imported with re-determined value of Rs. 21.08.90 + Rs.19,18,902/- under Section 111 (d) of the Act and however with an option to redeem the same on payment of a fine of Rs.2,50,000/- (OIO No. 25804) and Rs.2,00,000/- (OIO 25805) under Section 125 of the Act along with all applicable duties. He has also imposed a penalty of Rs. 1,00,000/- under Section 112 (a) of the Act on the appellant under both the OIO.On appeal, the Commissioner (Appeals) rejected the appeal on the ground that the appellants were not complying with the conditions of Import in terms of Para 2.32 of the Hand Book of Procedures and failed to furnish the clarifications/details called by the LAA. Aggrieved by this, the appellant is before the Tribunal.
2. Ld. Counsel Dr.Sunita Sunder R. Advocate, appearing on behalf of the appellant placed written submissions of the appellant and submitted that since they are only delivery agents the re-assessment of the unit price declared by the importer is unwarranted. She submitted that as per Para 2.32 of the Handbook of Procedures Vol-1, if the PSI certificate is not furnished or not in the manner prescribed in Annexure-I to Appendix-5, for which delivery agents cannot be penalized. On examination of the cargo it did not reveal any untoward materials/articles. She further submitted that the PSI certificate was issued by M/s. Ravi Energie INC, USA, in the format as required under the Handbook and Public Notice and they are listed under Appendix 5 as item No. 98. The Ld. Counsel strongly argued that apart from various documents indicating that not only in Scychelles, but also Morocco Islands, Mauritius, Madagascar and Comoros Islands, wherever there is no designated agency, cargo has been permitted to be imported in various Indian Ports and cleared without PSIC or on the basis of PSIC issued by other agencies. Hence, confiscation of the impugned goods does not arise. She relied on the Circular No. 56/2004-Cus dated 18.10.2004. She further submitted that even on request by the appellants post inspection report has not been provided to them. She further submitted that on inspection of the cargo there was no incriminating materials, as stated in the public notice was recovered rendering them liable for confiscation. She relied on the following case laws in support of her contentions:
1. A.R. Castings Pvt. Ltd. Vs. CC, CESTAT Delhi 2006 (200) ELT 411 (Tri.-Del.)
2. Dee-Vee Metals Vs. CC 2007 (216) ELT 223 (Tri.-Mum.)
3. Rashmi Jain Vs. Addl. Director General of Foreign Trade 2015 (316) ELT 389 (Del.)
4. NGA Steels Pvt. Ltd. Vs. CC, Chennai F.O.1487/2009 dated 16/10/2009 She further submitted that on the aforesaid grounds the impugned order may be set aside and the appeal allowed.
3. The Ld. AR, Shri L. Paneerselvam, AC, reiterated the findings of the adjudicating authority and the Commissioner (Appeals) and submitted that the agency which has been authorised to inspect the consignment in USA cannot inspect at other places and the PSI certificate issued by it is not a valid one. M/s. Ravi Energie, do not have the authority to inspect the cargo originating from Seychelles. They are listed for S. Korea, North America, UAE, European Union etc. The appellant should provide the cargo on board provided that it is bonafide, legal. But in the instant case, they have allowed the cargo without a proper PSI Certificate and failed to discharge their basic bonafide duty. By allowing the cargo, they have abetted the importer, in importing contravened goods. Accordingly, the adjudicating authority has rightly imposed penalty under Section 112 (a) of the Act. There is no evidence of goods being allowed in case of other imports as has been mentioned by the Ld. Counsel.
4. In rejoinder, the Ld. Counsel submitted that PSI certificate issuing agency need not be located in the area from where the cargo is to be loaded. The list of consignments originating from Seychelles and other places have been provided, and these places do not appear in the list of agents eligible to issue PSI ( 98 names). As regards abatement, mens-rea is not there. The appellant is a steamer liner, who is not the beneficiary. There is no finding in this regard by the adjudicating authority that the PSIC which was produced is no PSIC at all.
5. Heard both sides at length and perused the records. There is no dispute that the consignment was inspected and not found to contain any incriminating materials. The purpose of PSI Certificate is that the consignment does not contain any types of arms, ammunition, mines, shells cartridges or any other explosive materials in any form used or otherwise and that the consignment was checked for radiation level and it does not contain radiation level (gamma and neutron) in excess of natural background. It is not the case of the Customs that the PSI Certificate filed by the importer does not furnish the aforesaid information, required to decide whether the said consignment should be prevented from import or not. It is a factual admission of the customs that the inspection report furnished by M/s. ValueguruEngineers, does not contain any information that would render the consignment as not importable. In this case, the consignment was examined and no prohibited or incriminating materials were found. It is not the case of the respondent that incriminating material were found inside the consignment. The Honble High Court of Gujarat in the case of CC Vs. Senor Metals Pvt. Ltd. 2009 (236) ELT 445 (Guj.) has held that non-compliance with the fulfilment of the conditions may entail 100% goods carried by the consignment being subjected to inspection and that would not tantamount to improper import of goods u/s 111 of the Customs Act, 1962. I am of the considered opinion that the Revenue has failed to bring home the charge of abatement against the appellant. Accordingly, I set aside the impugned order so far as it relates to the imposition of penalty on the appellant herein and allow the appeal. It is ordered accordingly.
(Order Pronounced in the open Court on 04.07.2016) (P.K. CHOUDHARY) JUDICIAL MEMBER BB 1