Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Export), ... vs M/S Emirates Shipping Agencies (I) Pvt. ... on 1 April, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. C/1144/08 (Arising out of Order-in-Appeal No. 196(CWC/CFS)/2008-JNCH dated 22.05.2008 passed by the Commissioner of Customs (Appeals), Nhava Sheva). For approval and signature: Honble Shri Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the 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 : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== Commissioner of Customs (Export), Nhava Sheva Appellant Vs. M/s Emirates Shipping Agencies (I) Pvt. Ltd. Respondent Appearance: Shri Manish Mohan SDR for Appellant Ms. Aarti Bhide Advocate for Respondent CORAM: SHRI SAHAB SINGH, MEMBER (TECHNICAL) Date of Hearing: 01.04.2011 Date of Decision: 08.04.2011 ORDER NO. WZB/MUM/2011 Per: Sahab Singh
This is an appeal filed by the department against Order-in-Appeal No. 196(CWC/CFS)/2008-JNCH dated 22.05.2008 in which a penalty of Rs.2 lakhs imposed by the original authority was reduced to Rs.10,000/- by the Commissioner (Appeals).
2. The brief facts of the case are that the respondent had loaded one container covered under Shipping Bill No. 5213634 dated 30.4.2007 on to the vessel Express Resolve Voy. No. 235 which sailed on 02.05.2007 (holiday) without proper documents and Let Export Order (LEO) from the Customs. The original authority has held that due to the omissions and commissions on part of the Shipping Line, the subject goods which were loaded on the vessel without the permission of the proper officer, were liable for confiscation. Accordingly, a penalty of Rs.2 lakhs was imposed on the Shipping Line (the present respondent) by the original authority, which was reduced to Rs.10,000/- by the appellate authority on the ground that role of Shipping Line with respect to LEO is in fact minimal and there is no specific charge against the Shipping Line in the Order-in-Original.
3. The Department, in the present appeal, submits that the Commissioner (Appeals) has erred in observing the role of Shipping Line and holding that its role is minimal. The Revenue further submits that under Section 40 of the Customs Act, 1962, person-in-charge of a conveyance shall not permit the loading of export goods without a shipping bill duly passed by the proper officer and this is a serious and deliberate violation of the statute by the master of the vessel. Therefore, reduction in penalty by the Commissioner (Appeals) is not proper.
4. Learned Advocate for the respondent states that in this case the Commissioner (Appeals) has just reduced the quantum of penalty and not set aside the penalty totally. Reduction in penalty is discretion of the appellate authority, which cannot be challenged by the Department in the appeal. The Advocate also submitted a copy of the judgment dated 15.07.2009 passed by the Hon'ble Bombay High Court in the case of M/s CSAV Group Agencies (India) Pvt. Ltd. Vs. Union of India in Customs Appeal No. 57 of 2009, wherein the Hon'ble High Court has held, in a similar case, that this is only a technical breach and penalty was also reduced in this case from Rs.5 lakhs to Rs.2 lakhs.
5. After hearing both sides and perusal of the case records, I find that the arguments placed by the learned Advocate for the respondent have force and in view of the Hon'ble High Courts order reducing the penalty in a similar case, Order-in-Appeal passed by the Commissioner (Appeals) does not need any interference.
6. The Revenues appeal is, accordingly, dismissed.
(Pronounced in Court on ..) (Sahab Singh) Member (Technical) Vks/ 1