Custom, Excise & Service Tax Tribunal
Commissioner Of Customs(Export), ... vs M/S. Dakor Clearing & Shipping Pvt. Ltd on 14 November, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO.C/312/10-MUM
(Arising out of Order-in- Appeal No. 685 (EXPORT -TLP) /2009 (JNCH) / EXP-37 dtd. 30/11/2009 passed by the Commissioner of Customs (Appeals), JNCH, Sheva Mumbai-II )
For approval and signature:
Honble Mr Ramesh Nair, Member(Judicial)
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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 :
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?
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Commissioner of Customs(Export), Mumbai
:
Appellant
VS
M/s. Dakor Clearing & Shipping Pvt. Ltd.
:
Respondent
Appearance
Shri. Senthil Nathan, Dy. Commissioner(A.R.) for the Appellant
None for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 14/11/2014
Date of decision 14/11/2014
ORDER NO.
Per : Ramesh Nair
The appeal is directed against Order-in- Appeal No. 685 (EXPORT -TLP) /2009 (JNCH) / EXP-37 dtd. 30/11/2009 passed by the Commissioner of Customs (Appeals), JNCH, Sheva Mumbai-II, wherein the penalty on the appellant was set aside, which was imposed by the original authority in order No. S/10-10/2008/09 Adj 5/6-Gen-164/08-09 TLP dated 30/3/2009. The fact of the case is that the CHA M/s. Dakor Clearing & Shipping Pvt. Ltd. vide Shipping Bill No. 6932534 dated 19/12/2008 cleared the export of 20 pkgs of thermostat Housing parts under self sealing facility. In the adjudication order it was held that the appellant failed to play its role in which he was placed by not informing the freight forwarders to park the container in the buffer yard CFS as required under Facility Notice 65/2008 dated 8/9/2008 as it was a self sealed container requiring registration/examination by Customs. It was further held that as result the container directly taken to port and was loaded on the vessel. By not advising the forwarder-transporter about the procedure formulated under the said facility notice, the CHA has facilitated the illegal loading of the goods and therefore had rendered himself liable for penalty. Accordingly a penalty of Rs. 1 lakh was imposed on the appellant. In the appellant by the appellant before the Commissioner(Appeals), The Ld Commissioner appeal considering the facts and submissions made by the appellant, set aside the penalty. Aggrieved with Commissioner (Appeals) order the Revenue is before me.
2. Shri. Senthil Nathan, Ld. Commissioner(A.R.) appearing on behalf of the Revenue submits that in the committed offence, appellant is also responsible inasmuch as he has not informed properly to the freight forwarders to park the container in the buffer yard CFS as required under Facility Notice 65/2008 dated 8/9/2008 as result the container directly taken to port and was loaded on the vessel without Let Export Order. Therefore he is liable for penalty and the adjudicating authority was correct in imposing penalty of Rs 1 lakh. He submits that in these facts, Commissioner (Appeals) ought not to have set aside the penalty. He prayed for setting aside the order of the Commissioner (Appeals) and maintaining Order-in-Original.
3. None appeared on behalf of the respondent.
4. I have carefully gone through the records and submissions made by Ld. A.R.
5. On behalf of the appellant, its Director, Shri B.S. Paul has given the statement extract of the same appearing in the order-in-original is reproduced below:-
Shri. B. .S Paul, Director of the CHA stated that they were appointed by the fright forwarders as CHA and they had informed their freight forwarders i.e. M/s. Panalpina World Transport(I) Pvt. Ltd. That the shipping bill has not been registered and LEO has not been obtained as there is no factory stuffing permission with the exporter. Since they were not dealing with the shipping line or the exporter directly and their interaction was with the freight forwarders by whom they were appointed they informed non passing of shipping bill to the freight forwarders and it was for the freight forwarders to take further action. They have not committed any mistake rendering them liable for penalty for penalty under section 114 of Customs Act, 1992 .
From the above statement it is revealed that the appellant had informed the freight forwarders, M/s. Panalpina World Transport(I) Pvt. Ltd. regarding non registering of shipping bill and not obtaining LEO. The appellant also stated that since they were not dealing with the shipping line or the exporter directly and their interaction was with the freight forwarders by whom they were appointed, accordingly they informed these facts to the freight forwarders. Therefore it appears that appellant has discharged his duty. In the discussion and findings of the original order the finding related to the appellant was extracted and reproduced below:-
The CHA has failed to play its role in which he was placed by not informing the freight forwarders to park the container in the buffer yard CFS as required under Facility Notice 65/2008 dated8/9/2008 as it was a self-sealed container requiring registration/examination etc. by Customs. As a result the container was directly taken to port and was loaded on the vessel. By not advising the forwarder-transporter about the procedure formulated under above facility notice, the CHA has facilitated the illegal loading of the goods and has thus abetted the commission of offence by the shipping line. Therefore he is liable for penalty. The exporter is himself a victim of the offence committed by the shipping line, freight forwarder & CHA and he has not committed any act which renders the goods liable for confiscation. Therefore they are not liable for penalty.
From the above, it is clear that the above finding of the original authority is contrary to what has been stated by the Director of the appellant in his statement. The Revenue has not brought any such material on record to substantiate their findings in contradiction with the statement given by the Director of the appellant. He placed reliance on judgment of [2010(251) E.L.T. 147(Tri-Mumbai)] Nichrome India Ltd. Vs. Commr. Of Cus. (Export), Nhava Sheva. It is also observed that the shipping line was imposed the penalty of Rs. 5 lakhs and a penalty of Rs 2.5 lakhs was also imposed on freight forwarders.
5.1 In view of the above fact and circumstances of the case, I am of the considered view that the Ld Commissioner (Appeals) has correctly and legally dropped the penalty against the appellant, which does not require any interference. The appeal of the Revenue is therefore dismissed.
(Dictated in court) Ramesh Nair Member (Judicial) sk 5