2009 (10) TMI 704

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....tion 114 (iii) and M/s. Orchid Shipping Pvt. Ltd., the Shipping Line, against the imposition of penalty of Rs. 7,00,000/-under Section 114(iii) of Customs Act, 1962. 2. Brief facts of the case are that the exporter, exported three containers which were examined and sealed by the Central Excise Department and the said containers were gated in JN Port on 30-12-2006. Those containers were although gated in on 30-12-2006 but the exporter could not file the Shipping Bill on 31-12-2006 and 1-1-2007 being holiday. Due to change in the EDI system, the Shipping Bill were to be generated only against PAN Card and the CHA could not file the Shipping Bill. On 3-1-2007 the CHA filed the Shipping Bill and obtained the LEO on 4-1-07 but before obtainin....

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....d by tomorrow but the Shipping Line has loaded the container on the vessel on 3-1-2007 without any knowledge to the CHA. He further submitted that the Department has not brought any evidence on record to establish that the CHA or the Exporter were in the knowledge of loading of the containers and the sailing of the vessel on 3-1-2007. He further submitted that the goods have already been exported and the goods are not available and are not exported under any bond, the redemption fine on the Exporter cannot be imposed. To support this contention he placed reliance on Shiv Kripa lspat Pvt. Ltd. v. CCE & Cus, Nasik - 2009 (235) E.L.T. 623 (Tri. - LB) wherein it was held that 'Goods cannot be confiscated when not available and redemption fine i....

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.... Sudarshan Cargo Pvt. Ltd. and Ors. in Appeal No. C/1014, 1084/08, M/s. Kusters Calico Machinery Ltd. and Ors. in Appeal No. C/419, 420, 530/08 vide Order No. A/310-312/2009/SMB/C-IV and Nichrome India Ltd. Ors. in Appeal No. C/650, 809 and 1057/08 vide Order No. A/429-431/2009/SMB/IV dated 30-7-2009. He further submitted that in all the referred cases this Tribunal has held in similar facts, the Exporter, CHA and the Shipping Line are at fault for loading the containers without obtaining the LEO and penalties were confirmed against the Exporter, CHA and the Shipping Line. He further contended that the adjudicating authority has rightly imposed the penalty and prayed that the impugned order be confirmed. 7. On careful examination of the ....