TaxTMI 
TaxTMI 
2009 (3) TMI 395
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....stoms (Export), JNCH, Nhava Sheva. The Commissioner, vide the impugned order, held that the impugned goods exported under the Shipping Bill No. 4565816, dated 2-9-06 'valued at Rs. 32,67,993/-. FOB are liable to confiscation. Accordingly, he ordered for confiscation of the goods, though the goods were not available for confiscation. He gave an option to the exporter to redeem the goods on payment of fine of Rs. 5,00,000/- He has also imposed penalty of Rs. 3,00,000/- on the exporter and Rs. 7,00,000/- on the Shipping Line under Section 114(iii) of the Customs Act, 1962. 2. Heard both the sides and perused the records. 3. The brief facts of the case are that the exporter dispatched five containers of refrigerators from their factory on 1-9....
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....g of the vessel. He observed that the exporter had failed to perform their duty properly as they did not inform the Shipping line to stop the containers from being loaded without the supervision and approval of the officers of Customs. 5. However, I find that the Commissioner has not cited as to what should have prompted the exporter to stop the containers, which they believed were to be loaded on 4th September, 2006. The CHA did get the Shipping Bill passed in due course of time. No specific omission or commission on the part of the exporter has been cited, which made the export goods liable to confiscation. 6. The Shipping Line did not inform the exporter that the vessel would sail on 3-9-2006 instead of the scheduled departure on 4-9-2....
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....mission of the proper officer of Customs. It is not a case against the exporter that the loading of the containers on the vessel without 'Let Export Order' by the proper officer of customs was at the behest of the exporter or in their presence. The exporter never instructed or pressurized or induced the Shipping Line or the CHA to cause loading of the containers without the permission of the proper officer. There is no evidence of any incriminating conduct against the exporter. There is no implicatory allegation in the show cause notice against them. The Hon'ble Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa reported in 1978 (2) E.L.T. J159 (S.C.) has held that penalty will not ordinarily be imposed unless the party ob....
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....lls Ltd. reported in 2004 (164) E.L.T. 375 (S.C.). Therefore, placing reliance on the Tribunal's decision dated 29-11-2007 in the case of M/s. LMJ International Ltd. and Others (supra) will not be in order as it has not yet attained finality. 11. In the light of the discussions foregoing, I hold that the penalty of Rs. 3,00,000/- under Section 114(iii) of the Customs Act, 1962 is not impossible on the exporter. The same is set aside. 12. The subject goods, loaded on the vessel without the "Let Export Order from the proper officer of Customs, were not placed under seizure or were not assessed provisionally at the time of export. The exporter did not furnish any bond/undertaking at the time of its export. The goods in dispute were not avail....
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....E.L.T. 400 (T), which decision has been upheld by the Supreme Court as reported in 2005 (184) E.L.T. A36 (S.C.). 13. Following the ratio of the case laws cited above. I hold, that the impugned goods cannot be confiscated and the redemption fine cannot be imposed as the goods are not available for confiscation. Hence, the redemption fine of Rs. 5,00,000/- imposed on the exporter is set aside. 14. So far as the Shipping Line is concerned, they have contended that the vessel M.V. Emirates Freedom under Voy 635W was scheduled to arrive on 3-9-2006 and it was scheduled to depart on 4-9-6. However, due to the availability of the window birth on the terminal GT1, the authorities of the terminal requested them and then advanced berthing of the ve....