Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Unknown on 24 September, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT-II
Appeal No.C/50/10
Arising out of OIA No.476/2009/Cus/Commr(A)/KDL, dt.26.10.09
Passed by: Commissioner of Customs (Appeals), Ahmedabad
For approval and signature:
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the Yes
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant/s M/s. Marine Container Services
Represented by None
Vs.
Respondent/s CC Kandla
Represented by Shri J.S. Negi, SDR CORAM:
MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing:24.09.10 Date of Decision:24.09.10 ORDER No. /WZB/AHD/2010 Per: B.S.V. Murthy:
Appellant is engaged in providing services of shipping agent. They filed a prior import general manifest on 12.09.08 and final IGM on 17.09.08 for import of goods in containers to be discharged at Mundra Port. On 14.10.08, appellant requested for amendment in the IGM. By this time the imported cargo had been unloaded on 17.09.08. According to the Revenue this resulted in violation of Section 32 of Customs Act, 1962 which requires that goods should be included in the IGM before they are unloaded. After adjudication and appellate proceedings, the imported goods have been confiscated and redemption fine of Rs.1 lakh has been imposed in respect of goods valued at around Rs.20 lakhs and a penalty of Rs.15,000/- has been imposed under Section 112 of the Customs Act, 1962.
2. No one is present on behalf of the appellant and last time when the matter came up for hearing on 20.08.10 also no one was present. Heard the learned DR and have gone through the records.
3. Appellants have relied upon the decision of the Tribunal in the case of James Machintosh & Co. Pvt. Ltd. Vs. CC Mumbai reported in 2004 (166) ELT 88 (Tri. Mumbai) in support of their contention that when an application for amendment of IGM was made and no decision was taken on the same, without giving decision on the application it cannot be held that goods were not manifested and fine and penalty imposed. The Tribunal had considered the provisions of Section 30 of Customs Act, 1962 in that case and observed that the emphasis is on the words in sub section (3) of Section 30 of the Customs Act, 1962 that amendment or supplement of a manifest is to be permitted if there is no fraudulent intention shows that the purpose is to prevent smuggling which may be discovered after filing an application for amendment of manifest. In this case as rightly submitted by the appellants, the Commissioner (Appeals) in his order has observed that there has been clear negligence and disregard of the provisions but he has also held that there are no findings of any deliberate or malafide intention on the part of the appellant. When there is no finding of fraudulent intentions on the part of the agent, the action of the lower authorities in proceeding further without considering the application for amendment and confiscating the goods and imposing penalty is not correct. Further, the appellants also have relied upon the circular issued by the Board vide No.13/05-Cus dated 11.03.05 and amending circular No.44/05 dated 24.11.05. In this circular the Board had issued instructions that amendments of IGM or supplementing of IGM be permitted when there is no fraudulent intention and adjudication will arise only in cases where fraudulent intention or substantial implication of Revenue arises from the amendments. I find that in the absence of a finding of fraudulent intention and the need for adjudication of the application for amendment, the action of the lower authorities in proceeding to confiscate the goods, impose fine and penalty was not warranted. Accordingly the impugned order is set aside and appeal allowed with consequential relief to the appellant.
(Pronounced in Court)
(B.S.V. Murthy) Member (Technical)
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