Custom, Excise & Service Tax Tribunal
Om Freight Forwarders Pvt. Ltd vs Commissioner Of Customs (Exports) on 10 August, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. C/482/09 - Mum
(Arising out of Order-in-Appeal No. 47(ADC/CWC CFS, DNode)/2009 (JNCH) dated 13.02.2009 passed by the Commissioner of Customs (Appeals), Nhava Sheva)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
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 :
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?
Om Freight Forwarders Pvt. Ltd.
:
Appellants
Versus
Commissioner of Customs (Exports)
Nhava Sheva
Respondents
Appearance Shri Anil Balani, Advocate for Appellants Shri B.P. Pereira, JDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 10.08.10 Date of Decision : 10.08.10 ORDER NO.
Per : Ashok Jindal The CHA has filed this appeal against the impugned order confirming the penalty of Rs.50,000/- for violation of provisions of Section 40 of the Customs Act, 1962.
2. The facts of the case are that the appellants filed the shipping bill on behalf of M/s. Indo Euro Exports on 01.05.2007 and the LEO was granted on 03.05.2007 but the container was loaded on the vessel on 02.05.2007 and on the same day the vessel was sailed out.
3. The learned Advocate on behalf of the appellants submitted that it was not in the knowledge of the appellants that the goods have already been sailed on 02.05.2007. He further contended that after the goods have been gated into the port area, the CHA does not have any control over the goods. It is only the shipping line and the proper officers are having control over the goods and the shipping line has loaded the container on their own without informing the CHA. The LEO could not be obtained on 02.05.2007 being Sunday. He also relied on the decision in the case of Mohini Organics Pvt Ltd., vs. Commissioner of Customs (Export) Nhava Sheva as reported in 2009 (240) ELT 589 (Tri-Mum) and N. Karim & Sons vs. Commissioner of Customs (Export), Nhava Sheva 2010 (251) ELT 444 (Tri.-Mumbai) wherein the penalty imposed on the appellants was dropped by this Tribunal.
4. On the other hand, the learned DR submitted that in this case the CHA got invoice on 30th April 07 and failed to obtain LEO from the proper officer before loading the goods into the vessel. It is the duty of the CHA to monitor the loading of the container into the vessel and when on 01.05.07 the CHA failed to obtain the LEO, he did not inform the shipping line to not to load the container into the vessel. He further submitted that the appellant has violated the provisions of Section 40 of the Customs Act, 1962 hence the penalty has been rightly imposed on them.
5. Heard both sides.
6. On careful examination of the submissions made by both sides I find that, it is not disputed that the goods were factory stuff container and the same has been examined by the Central Excise Officers. It is also a fact that the goods were reached the port area on 30th April, 07 and the appellant filed the check list on the same day but the shipping bill could not be processed by the concerned officials on 01.05.2007 which caused delay in issuing the LEO which could have obtained only on 3.5.2007. The non-disputed goods were gated in on 30th Apr 07 and after gated in the goods entered into the port area, the CHA has no control over the container, hence the CHA does not have any knowledge of the loading of the container. In the case of Mohini Organics Pvt Ltd. (supra) this Tribunal has observed as under:-
11. There was no omission or commission on the part of the exporter/CHA rendering the subject goods liable to confiscation and only observation by Commissioner in para 19 of the impugned order is that they did not inform the shipping line to stop the containers from being loaded without the supervision and approval of the officer of the Customs, when the fact is that they had no knowledge that the containers were loaded by the shipping line, without the supervision or without the let export order from the proper officer of Customs. 6.1 In the case of N. Karim & Sons (supra) also this Tribunal has held that the penalty on the CHA is not leviable in cases where the LEO could not be obtained due to holiday and the goods were loaded and the vessel sailed without obtaining the shipping bill and LEO. The said order has been confirmed by the Honble High Court of Bombay.
7. Following the ratio of the above cited decisions and observations made by this Tribunal, I am also of the view that in such type of cases penalty is not leviable on the CHA. Accordingly, the impugned order is set aside and the appeal is allowed.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) nsk 4