Custom, Excise & Service Tax Tribunal
M/S Emirates Shipping Agencies (India) ... vs Commissioner Of Customs (Export), ... on 16 October, 2009
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/1150, 1151/08
(Arising out Order-in-Original No. 100/2008 dated 7.8.2008 passed by the Commissioner of Customs (Exp), N. Sheva)
For approval and signature:
Honble Mr. P.G. Chacko, 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?
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s Emirates Shipping Agencies (India) P. Ltd.
Appellant
Vs.
Commissioner of Customs (Export), Nhava Sheva
Respondent
Appearance:
Smt. Aarti Bhide, Advocate for the appellant Shri S.M. Vaidya, JDR for the respondent CORAM:
Honble Mr. P.G. Chacko, Member (Judicial) Date of hearing : 16.10.2009 Date of decision : 16.10.2009 O R D E R No:..
These appeals were filed by the appellant against penalties of Rs.5 lakhs each imposed on them under Section 114 of the Customs Act by the Commissioner of Customs (Export), Nhava Sheva in two separate orders which were passed in relation to export of two consignments of goods by M/s Reliance Inds. Ltd. The offence found against the appellant is that they loaded the goods onto the vessels and sailed off without waiting for Let Export Order (LEO). At this stage, the offence stands admitted. In these appeals, however, the shipping line seeks to have the penalties vacated on the ground that there was no negligence or mistake on their part. It is submitted that the CHA for the exporter had assured them that all the requirements for export were complete in respect of the consignments. According to the appellant, they had only acted in good faith on the strength of this assurance. Ld. counsel for the appellant reiterates the above grounds of the appeals. She also submits that, in similar case of another shipping line, the Honble Bombay High Court was pleased to reduce the quantum of penalty from Rs. 5 lakhs to Rs.2 lakhs. She has placed on record a copy of the Honble High Courts order dated 15.7.2009 in Customs appeal no. 57/09 in the case of M/s. CSAV Group Agencies (India) P. Ltd. vs. UOI. The ld. SDR, on the other hand, submits that the shipping line along with the exporter and CHA committed a serious breach of provisions of the Customs Act and therefore, the penalties imposed on them are justifiable. In this connection, reference is made to Sections 35, 40 and 50 of the Act. Ld. SDR has also relied on a decision of this bench viz. CSAV Group Agency (India) P. Ltd. vs. CCE, Sheva 2009 (237) ELT 716 (Tri-Mum), wherein the penalty of Rs.5 lakhs imposed on the shipping line by the Commissioner was sustained. The ld. SDR prays for a similar decision in this case also.
2. After giving careful consideration to the submissions, I find that, though the appellant has prayed for vacating the penalty, they have not furnished sufficient grounds for this relief. It appears there is no valid counter to the plea made on behalf of the respondent that the shipping line was liable to wait for LEO so that the goods could be loaded on to the vessels in terms of Section 40 of the Customs Act. This provision of law coupled with Section 51 of the Act requires that the master of the vessel should carry an authenticated copy of the relevant shipping bill, with LEO endorsed therein. In this case admittedly, the vessels sailed on without waiting for LEO, from which act a serious breach of mandatory provisions of the Customs Act is discernible. Therefore, the penalties cannot be resisted by the shipping line. In any case, for these appeals, it has not been argued that, the goods were not liable to confiscation. The Commissioner held them to be liable to confiscation under Section 113(g) of the Act. By sailing of without waiting for LEO the shipping line was virtually abetting the offence committed by the exporter and their CHA, thereby attracting penalty under Section 114 of the Act.
3. However, in these cases, the quantum of penalty imposed by the Commissioner is harsh. Ld. counsel has cited a case of another shipping line, namely, CSAV Group Agencies (India) Ltd. wherein the Honble High Court reduced the quantum of similar penalty from Rs.5 lakhs to Rs.2 lakhs. In the present case also, having regard to the facts and circumstances, I am inclined to reduce the quantum of penalty. Accordingly, it is reduced to Rs.2 lakhs in each case.
4. With the above modification, the orders of the Commissioner are sustained and these appeals are disposed of.
(Dictated in Court) (P.G. Chacko) Member (Judicial) //SR 4