Custom, Excise & Service Tax Tribunal
Shri Ram Gopal Bhoot vs Kolkata-Port on 2 May, 2025
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO. 1
Customs Appeal No. 76047 of 2023
(Arising out of Order-in-Original No.KOL/CUS/COMMR/PORT/GR-I/09/2023 dated
19.09.2023 passed by Commissioner of Customs(Port),Kolkata)
Shri Amar Agarwal : Appellant
Diamond heritage, 12th Floor, Suit No. 1208B, 16 Strand
Road, Kolkata-700 001.
VERSUS
The Commissioner of Customs(Port), Kolkata, : Respondent
15/1 Strand Road, Kolkata With Customs Appeal No. 76083 of 2023 (Arising out of Order-in-Original No.KOL/CUS/COMMR/PORT/GR-I/09/2023 dated 19.09.2023 passed by Commissioner of Customs(Port),Kolkata) Shri Ram Gopal Bhoot, :
4/4F, Space Town Housing Complex, VIP Road, Kolkata-700052 Appellant VERSUS The Commissioner of Customs(Port), Kolkata, :
15/1 Strand Road, Kolkata Respondent With Customs Appeal No. 76082 of 2023 (Arising out of Order-in-Original No. KOL/CUS/COMMR/PORT/GR-I/09/2023 dated 19.09.2023 passed by Commissioner of Customs,Kolkata) M/s. Kritika Impex, : Appellant 4/4F, Space Town Housing Complex, VIP Road, Kolkata-
700052 VERSUS The Commissioner of Customs (Port), Kolkata, : Respondent 15/1 Strand Road, Kolkata With Customs Appeal No. 76048 of 2023 (Arising out of Order-in-Original No. KOL/CUS/COMMR/PORT/GR-I/09/2023 dated 19.09.2023 passed by Commissioner of Customs, Kolkata) Kushagra Shipping Agency, : Appellant 4/4F, Space Town Housing Complex, VIP Road, Kolkata- 700052 VERSUS 2 Appeal No.: E/76248,76249, 76250, 76251/2014-DB The Commissioner of Customs, Kolkata, : Respondent 15/1 Strand Road, Kolkata With Customs Appeal No. 76095 of 2023 (Arising out of Order-in-Original No. KOL/CUS/COMMR/PORT/GR-I/09/2023 dated 19.09.2023 passed by Commissioner of Customs, Kolkata) M/s. Bhawani Cargo Movers, : Appellant 4, Sonarpur Road, Jain Kunj, Kolkata-700088 Versus Commissioner of Customs, Kolkata 15/1 Strand Road, Kolkata With Customs Appeal No. 76096 of 2023 (Arising out of Order-in-Original No. KOL/CUS/COMMR/PORT/GR-I/09/2023 dated 19.09.2023 passed by Commissioner of Customs, Kolkata) M/s. Ganpati Roadways (3rd Floor, Room No. 62, 161/1, Mahatma Gandhi Road, Kolkata-700 007.) Versus Commissioner of Customs, Kolkata 15/1, Strand Road, Kolkata APPEARANCE:
Shri Sudhir Mehta, Sr. Advocate for the Appellants Shri T.Sulaiman, Authorized Representative for the Respondent CORAM:
HON'BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL) HON'BLE SHRI K.ANPAZHAKAN, MEMBER (TECHNICAL) FINAL ORDER NO. 76132-76137/ 2025 DATE OF HEARING :23.04.2025 DATE OF DECISION: 02.05.2025 Order : [Per Shri Ashok Jindal] 3 Appeal No.: E/76248,76249, 76250, 76251/2014-DB As all the appeals are having a common issue so all are disposed by a common order.
2. The facts of the case are that the appellants on the basis of documents received a communication from the foreign seller & filed bill of Entry before arrival of the vessel being Bill of Entry No. 540 5619 dated 11th September, 2021.
3. On or about 18th September, 2021 the appellant received a communication from foreign seller that container carrying the goods were wrongly loaded by mistake and the goods are required to be recalled. The appellant sent a communication to the Deputy Commissioner of Customs on 18.09.2021 and that the foreign seller has recall the cargo and that the appellant has not taken the documents from bank and in the circumstances, the appellant would be relinquishing its right on the goods under Section 23 of the Customs Act, 1962 to recall the cargo by filing a suitable Bill of Entry.
4. The appellant sent the communication to the Custom Authorities. Bill of entry was taken out and sent to the appraising group of the Custom House and at the CFS station, the custom broker conducted 100% examination of the goods.
5. The Custom Broker was discharged from the job in view of the recall of the cargo by the foreign seller, nonetheless the Custom Broker arranged for 100% examination of goods. The goods were found to be having 50 bags of white wood powder and 650 bags of white pepper.
6. The Custom Authorities started the investigation and took several statements of the appellants. In the course of such interrogation, the 4 Appeal No.: E/76248,76249, 76250, 76251/2014-DB appellant explained that he was not aware of any miss-declaration or wrong shipment of the goods when it received the intimation from the foreign seller about error in shipment of the goods. The appellant also stated that the foreign seller also has recalled the cargo and sought to transship the goods back to Singapore before the cargo reached at the Ports of Discharge but it failed since the vessel had left the Port of Loading with the manifest declaration filed at Singapore after which the mistake came to the notice and there was no scope of any transhipment/stoppage and /or withholding of the container before landing of the goods at the Port of Discharge.
7. It was mandatory on the part of the shipment company to file the manifest as it could not keep or withhold the cargo in the ship from the port of discharge.
8. Though the petitioner had no knowledge about the mis declaration of the goods, nonetheless, the appellants were issued a show cause notice demanding duty and for imposing penalties by the in respect of the consignment recalled by the shipper as well as relinquished by the apellant as well.
9. It was also found that the appellant has also imported one consignment under Bill of Entry no.
5257900 dated 31.08.2021. On the basis of such investigation, a Show Cause Notice was issued on 21.10.2022 for alleging mis declaration of the goods by the appellant and consequently to demand duty and of confiscation of the goods in question and to impose penalty on the appellant.
10. The matter was adjudicated and it was held that goods found against the Bill of Entry No. 5 Appeal No.: E/76248,76249, 76250, 76251/2014-DB 5405619 dated 11th September, 2021 are mis- declared. Consequently, duty was demanded alongwith interest and penalties on the appellants were imposed.
11. Further the past import made by the appellant was also held mis-declared. Consequently, the duty was demanded and penalties were imposed on the appellant namely, the importer, the custom broker and the transporters.
12. Aggrieved from the said order, the appellants were before us.
13. The Ld. Counsel for the appellants submit that as initially the appellant filed bill of Entry on 11 th September, 2021 declaring the goods as white wood powder but on receiving communication from the foreign seller on 18th September, 2021, the appellant intimated to the department that the goods has been wrongly loaded. Therefore, the goods are required to be recalled by the foreign seller. In that circumstances, the appellant relinquished their right to claim ownership of the goods therefore, the proceedings are not sustainable.
14. It is further submitted that the past import vide bill of entry no. 5257900 dated 31st August, 2021, the allegation of mis-declaration is on the basis of assumption and presumption and in that import also, the appellant has mis-declared the goods as white wood powder. All allegations are assumption and presumption. Therefore, the goods are not liable for confiscation. Consequently, no duty and penalty can be imposed on the appellants.
15. On the other hand, the Ld. Authorized Representative is saying that on filing the bill of 6 Appeal No.: E/76248,76249, 76250, 76251/2014-DB entry on 14.09.2021, the intimation was sent to the customer procured for 100% examination of the goods but goods were not present and consequently on 18.09.2021 a copy was e-mailed by the importer and on 18.09.2021, they have received the said communication and appellant to relinquished the same. The said bill of entry was sent back to the concerned appraising group for further orders and the appraising group reported back the bill of entry to the said officer. After that the said office conducted 100% examination of the goods and requested the importer and the custom broker. And during the course of examination, it was found that the goods were mis-declared and the same was only after thought.
16. Therefore, the proceedings were rightly initiated against the appellant and the appellant has mis-declared the goods and the goods were liable for confiscation and penalties were imposed.
18. Heard the parties. Considered the submissions.
19. In this case the appellant filed bill of entry and intimated to the department and an e-mail from the foreign seller has received and relinquished the consignment as wrong container has been loaded by the exporter before examination of the goods. But for better appreciation of the facts, the said letter given by the foreign supplier in this regard, is extracted below:
7Appeal No.: E/76248,76249, 76250, 76251/2014-DB 8 Appeal No.: E/76248,76249, 76250, 76251/2014-DB
20. Consequently, the appellants intimated the same to the Deputy Commissioner of Custom on the same date. The said letter is excerpted herein below:
9Appeal No.: E/76248,76249, 76250, 76251/2014-DB
21. The claim of the Revenue is that on the basis of the above intimation to the custom broker, 100% examination of the goods left was not present for physical examination. It was not coming out from the facts of the case that the custom broker was intimated for 100% examination and left without information. In that circumstances, it cannot be held that the appellants were having prior knowledge of mis declaration of the goods as the foreign supplier admitted his mistake and the appellant is not claiming the ownership of the said consignment.
22. In that circumstances, benefit of doubt comes in favour of the appellant. Therefore, the appellant is not at fault for mis-declaration found in bill of entry no. 5405619 dated 11th September, 2021.
23. In that circumstances, no penalties can be imposed on the appellant having act of mis declaration in bill of entry no. 5405619 dated 11 th September, 2021.
24. We further take note on the fact that on the basis of mis-declaration found in the bill of entry no. 5405619 dated 11thSeptember, 2021, it is alleged that in the past import made by the appellant vide bill of entry no. 5257900 dated 31st August, 2021, the appellant has mis declared the goods.
10Appeal No.: E/76248,76249, 76250, 76251/2014-DB
25. Such allegation has been made against the appellant by the Revenue without any evidence brought in record by the Revenue that the said goods covering by the Bills of Entry no. 5257900 dated 31 st August, 2021 were mis declared. The said allegation is only on assumption and presumption basis.
26. We hold that the consignment covering bill of entry no. 5257900 dated 31st August, 2021 is not liable for confiscation as the mis-declaration has not been proved by the Revenue.
27. Therefore, demand of duty against the bill of entry no. 5257900 dated 31st August, 2021 is set aside and no penalty is imposable on the appellants. In that circumstances impugned order qua demand of duty against the bill of entry no. 5257900 dt. 31 st August, 2021 is set aside and no redemption fine and penalties were imposable against the said bill of entry.
28. In these terms, we hold that no proceedings are sustainable against the appellants. Accordingly impugned order qua imposing demand of duty in bill of entry no. 5257900 dt. 31st August, 2021 and confiscation of the goods covering the said bill of entry and imposing penalties on the appellants, is set aside and for mis-declaration on bill of entry no. 5405619 dt. 11th September, 2021, no penalties are imposable on the appellants.
11Appeal No.: E/76248,76249, 76250, 76251/2014-DB
28. In these terms, the appeals are allowed with consequential relief, if any.
(Pronounced in the open court on _02.05.2025) (ASHOK JINDAL) MEMBER (JUDICIAL) (K.ANPAZHAKAN) MEMBER (JUDICIAL) RG