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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.

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.