Custom, Excise & Service Tax Tribunal
Passage Cargo (P) Ltd vs Commissioner Of Customs And Service Tax ... on 24 February, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No . 20271 / 2014 Application(s) Involved: C/Stay/20237/2014 in C/20251/2014-DB C/Early Hearing/20238/2014 in C/20251/2014-DB Appeal(s) Involved: C/20251/2014-DB [Arising out of Order-in-Original No. 01/2014 dated 15/01/2014 passed by Commissioner of CUSTOMS , BANGALORE] Passage Cargo (p) Ltd No. 242 & 243, Whitefield Main Road BANGALORE KARNATAKA-560066 Appellant(s) Versus Commissioner of Customs and Service Tax - Bangalore-cus C.R. BUILDING,QUEENS ROAD, P.B.NO. 5400, BANGALORE, KARNATAKA-560001 Respondent(s)
Appearance:
S.SANKARAVADIVELU ADV, NO.12, GENERAL GOLLINGS ROAD, CHOOLAI, CHENNAI TN-600112 For the Appellant Mr. R. Gurunathan, Adv For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 24/02/2014 Date of Decision: 24 /02/2014 Order Per : B.S.V.MURTHY Appellant is seeking early hearing of the appeal. The CHA license has been suspended for a period of six months and in the normal course the matter may take even up to six months for hearing itself to take place. We consider the request to be reasonable and accordingly the early hearing application is allowed and with the consent of both sides, the appeal is taken up for final decision.
2. The appellant has also filed a stay petition seeking stay of operation of the impugned order. Since the appeal itself is taken up for hearing, the stay application is dismissed as infructous.
2. The appellant is a CHA and had filed bill of entry involving customs duty of about Rs. 80 lakhs on behalf of M/s Mico Ltd. The bill of entry was assessed and permission for warehousing of the said imported consignment was obtained by the appellant. The goods were lying with the custodian M/s Mysore Sales International Ltd (MSIL). When M/s Mico Ltd wanted the goods to be cleared, the appellant approached MSIL and it was found that the consignment had been sold in auction since the cargo was not cleared within 30 days from the date of importation. Auction was held on 12/7/2007. M/s Kataria Impex who was the bidder was requested to dispatch the consignment back to the importer and appellant was asked to make a payment of Rs. 25 lakhs to M/s Vijayalakshmi Auto Centre, Chennai on 6.12.2007 who had purchased the goods from the bidder. In the mean time M/s Mico Ltd, the importer claimed Rs 2.5 crores from Customs towards the goods.
3. Thereafter proceedings were initiated under Customs CHALR 2004 against the appellant on the ground that the appellants were not diligent in discharging their duties and because of their fault and because they did not take proper action, the consignment was sold by the custodian. The proceedings have culminated in the impugned order whereby the licenses have been suspended for a period of six months and the security deposited has been forfeited. The order was issued on 15.1.2014.
4. Learned counsel submits that the appellant has already suffered nearly 45 days of suspension for no fault of his. He submits that it was the duty of the custodian to issue a notice to the CHA as well as the importer before disposal of the cargo. Cargo the value of which was about Rs 1.8 crores has been disposed of for Rs. 9 lakhs and it is not the case of the custodian that the cargo was abandoned. The requirement of Section 48 of the Customs Act have not been fulfilled. Moreover, he submits that appellant was asked to pay an amount of Rs. 25 lakhs which they had paid but even then proceedings were initiated for auction. The CHA was not at all at fault. Further security deposit also has been forfeited. It is his submission that suspension for more than 45 days itself is sufficient under these circumstances even if it is assumed that the CHA was at fault.
5. We have considered the submissions. We find considerable force in the arguments that the failure in this case is of the custodian who did not issue notice before disposal of the cargo. Section 48 of the Customs Act reads as under:
SECTION 48. Procedure in case of goods not cleared, warehoused, or transhipped within [thirty days] after unloading. If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within [thirty days] from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof :
Provided that -
?(a) animals, perishable goods and hazardous goods, may, with the permission of the proper officer, be sold at any time; ?(b) arms and ammunition may be sold at such time and place and in such manner as the Central Government may direct. Explanation. - In this section, arms and ammunition have the meanings respectively assigned to them in the Arms Act, 1959 (54 of 1959).
6. As can be seen, the Section requires a notice to be issued to the importer and permission of the proper officer to be obtained. The learned A.R. could not show any statutory provision which requires the CHA to ensure that cargo is cleared within a specified period and in the absence of any statutory provision requiring CHA to ensure clearance of cargo, action against the CHA is not warranted. The only negligence on the part of CHA is that he has lost the docket of bill of entry and the concerned person dealing with the bill of entry had left them. Needless to say that there was negligence on the part of CHA to some extent. However, it can not be said that CHA should suffer such serious punishment for the lapses on the part of the custodian who has failed to fulfill the statutory obligation. In our opinion, the punishment of suspension till date and forfeiture of security is sufficient for the omissions on the part of CHA in this case and therefore accordingly we reduce the period of suspension up to 28.2.2014 but otherwise uphold the impugned order. Appeal is decided in the above terms.
(Order dictated and pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Pnr...
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