TaxTMI 
TaxTMI 
2009 (12) TMI 809
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....A (the appellants). The factory-stuff containers were offloaded in the port late on 23-12-2006 and were gated in on the same day, but due to the Holiday in Customs office on 24 & 25-12-2006, the Let Export Order (LEO) was obtained only on 26-12-2006. In the meantime, the containers were loaded on the vessel on 25-12-2006 and the same was sailed on 25-12-2006. The main contention of the CHA is that they try to contact shipping line but they did not respond. It is admitted fact that the factory stuff containers were gated in on 23-12-2006 and the same were loaded on the vessel on 25-12-2006 and the vessel sailed on the same day without shipping bill and LEO from the proper officer. A show-cause notice was issued alleging that the exporter did....
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.... the CHA had forwarded the list of containers with the request to "please include the following containers in the loading list per vessel Emirates Freedom-V-0651". After the list of container at the end of e.mail the CHA had instructed "all the above containers will be offloaded in port before the cut off and shipping bill will be handed over at JNPT as early as possible." Thus, as the CHA failed to get the goods assessed prior to export and failed to obtain the LEO before the goods were loaded on Board and exported, I find that they are certainly liable for penalty under Section 114 of the Customs Act, 1962, in as much as their omission had rendered the goods liable for confiscation under Section 113(g) ibid. The Commissioner, on the basis....
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....that they had not faulted or played any role in the loading of the container on board the vessel without LEO. The delay on the part of the CHA and the omissions and commissions on the part of the Shipping Lines which rendered the subject goods liable for confiscation are beyond the control of the exporter. But the goods were loaded on the vessel without the permission of the proper officer are offended goods and hence are liable for confiscation in terms of Section 113(g) of the Customs Act, 1962 as already discussed above." In view of the above submissions, he prayed that the penalty imposed on the appellants be waived. 5. On the other hand, the learned SDR submitted that it is the duty of the CHA to be vigilant not to load the goods on ....
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....oods were neither accompanied by a shipping bill nor by a boat-note but loaded on the said vessel without supervision of a proper officer. The person-in-charge of the vessel permitted loading of the goods, which were not accompanied by the shipping bill duly passed by the proper officer and even though no shipping bills were produced by the exporter. 8. The main thrust of the allegation is on the shipping line, which allowed the goods being loaded on the vessel without the proper documentation and without the supervision of the proper officer. It is true fact that when the goods are gated in, the goods are beyond the control of the CHA and the exporter. The reliance paced by the learned SDR in the cases of Sudarshan Cargo in appeals No. C/....