Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Import) ... vs M/S J.M. Baxi & Co on 1 August, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. I
Appeal No. C/1050 & 1057/04
C/CO/24/05
(Arising out of Order-in-Original No. CAO NO. 59-2003/CAC/CC(AH) IMP dated 04.09.2003 passed by the Commissioner of Customs (Import) Mumbai-I).
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
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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 (Import) Mumbai-I Appellant Vs. M/s J.M. Baxi & Co. M/s Sea Bridge Maritime Agencies Pvt. Ltd. Respondent Appearance: Shri M.S. Reddy, Asst. Commissioner (A.R.) for Appellant Shri A.Z. Mookhtiar, Advocate for J.M. Baxi & Co Shri Sunil M. Padave, Executive Claim for Sea Bridge for Respondent CORAM: SHRI P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL) Date of Hearing: 01.08.2013 Date of Decision: 01.08.2013 ORDER NO. Per: P.R. Chandrasekharan
Revenue has filed these appeals against the Order-in-Original No. 59/2003/CAC/CC/AH/IMP dated 04.09.2003 passed by the Commissioner of Customs (Import), New Customs House, Mumbai.
2. A case of non-accountal of ship stores was made against M/s M.B. Bond Stores Pvt. Ltd., who was licensed under Section 59 of the Customs Act, 1962 for maintaining the warehouse. The case relates to supply of ship-stores such as cigarettes, alcoholic liquors etc. to various vessels which arrived in the Bombay Port without proper accountal. Respondents herein M/s J.M. Baxi & Co. and M/s Sea Bridge Maritime Agency Pvt. Ltd. acted as ship agents in respect of vessels MV Sun Diamond and MV Bunga Mastiga during 7.09.1998 to 12.09.1998 and during September, 1998 respectively. The charges against the respondents are that they have violated the provisions of Sections 39 and 41 of the Customs Act, 1962 inasmuch as they allowed unaccounted ship-stores to be loaded on to the vessel and the same were not included in the export manifest or the export report. Accordingly, a show-cause notice dated 6.3.2000 was issued to the above two shipping agencies among others proposing to impose penalty under Section 117 of the Customs Act. The case was adjudicated vide the impugned order. The adjudicating authority came to the conclusion that on verification of stock, no shortage or excess goods were found and the discrepancy, if any, are only bona fide errors. The Ship Chandler procured orders for supply of ship-stores directly from the captain or the crew and, therefore, the shipping agencies were kept in dark about the receipt of ship-stores and they also did not receive any consideration in respect of these ship-stores and in the absence of any evidence against the shipping agency, the learned Commissioner dropped the proceedings and aggrieved of the same, the Revenue is in appeal before me.
3. In the grounds of appeal, it has been urged that the adjudicating authority erred in concluding that the goods entered into the docks area can be considered as not taken on board the vessels and also concluding that the discrepancy is only for bona fide errors and, therefore, the dropping of penal proceedings against the shipping agency is incorrect in law.
4. The learned Dy. Commissioner (A.R.) appearing for the Revenue reiterates the ground urged in the appeal memorandum.
5. The learned Counsel for the respondent has submitted that no Bill of Entry for the ship-stores were filed by the warehouse agent for the aforesaid shipments and they were not aware of the supply of any ship-stores to the crew of the vessels and they were also shipping agents only for a very short period. Therefore, the adjudicating authority has rightly concluded that there is no evidence available on record about the complicity of the shipping agent in the alleged supply of ship-stores on to the vessels. Accordingly, the counsel pleads that the impugned order be upheld.
6. I have carefully considered the submissions made by both the sides.
6.1 There is a detailed procedure prescribed for removal of goods from a private bonded warehouse and supply of ship-stores to the vessels. All these activities are undertaken under the supervisions of Customs Officers. If the warehouse keeper or the officer supervising the activity failed in his responsibilities and no documents in respect of the aforesaid supply were given to the shipping agents, the blame cannot be put on the shipping agent for non-compliance of any provisions of law. The adjudicating authority in para 5.7 and 5.8 of the order has clearly concluded that there is no evidence against the shipping agents as to their complicity in supply of the ship-stores and accordingly, he has dropped the proceedings. In the absence of documentary evidence, linking the shipping agents with receipt of the goods on board the vessels, the charges of violation of the provisions of Section 39 or 41 would not arise and consequently, no penalty levy can be fastened on to the shipping agents. Therefore, I do not find any merit in the Revenues appeal as far as the charges against the shipping agent M/s J.M. Baxi and M/s Sea Bridge Maritime Agency Pvt. Ltd. in the present case and accordingly, I dismiss the appeals filed by the Revenue as far as these respondents are concerned.
(Dictated and pronounced in Court) (P.R. Chandrasekharan) Member (Technical) Sinha 4