TaxTMI 
TaxTMI 
2013 (12) TMI 92
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....24-7-2008, that is, after the ship had set sail. Therefore a show cause notice dated 10-11-2008 was issued by the Customs authorities, inter alia, directing the exporter and the CHA to show cause as to why the goods valued at Rs. 88,81,600/p should not be confiscated under Section 113(g) of the Customs Act, 1962 and why penalty under Section 114(iii) ibid should not be imposed on them. The case was adjudicated by the ld. Commissioner vide the impugned order wherein he confiscated the goods and imposed a redemption fine of Rs. 15 lakhs in lieu of confiscation and imposed a penalty of Rs. 3 lakhs on the CHA. Hence the appellants are before us. 3. The ld. Counsel for the appellants makes the following submissions :- (1) Inasmuch as the goods were not available for confiscation, the confiscation ordered is not sustainable in law and consequently, the question of imposing any fine in lieu of confiscation does not arise. He relies on the decision of Larger Bench of this Tribunal in the case of Shiv Kripa Pvt. Ltd. [2009 (235) E.L.T. 623 (Tri.-LB)] and the decision of the Hon'ble High Court of Punjab & Haryana in the case of Raja Impex (P) Ltd. [2008 (22....
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....lty. Sections 50 & 51 of the Customs Act, 1962, prescribes the procedure for export of goods and they read as follows :- SECTION 50. Entry of goods for exportation. - (1) The exporter of any goods shall make entry thereof by presenting electronically to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form. Provided that the Commissioner of Customs may, in cases where it is not feasible to make entry by presenting electronically, allow an entry to be presented in any other manner. (2) The exporter of any goods, while presenting a shipping bill or bill of export, shall make and subscribe to a declaration as to the truth of its contents. SECTION 51. Clearance of goods for exportation. - Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation. The exporter or the CHA on his behalf ....
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....bill, examination of cargo and obtain the "Let Export Order" after which he has to contact the customs staff for loading of the goods. Thus unless and until the loading of the export goods on to the vessel is completed, the duty and responsibility cast on the CHA does not come to an end. In case the CHA fails to complete these statutory provisions, he would be liable for penal consequences. 5.5 As per the provisions of Section 113(g) of the Customs Act, "any goods loaded or attempted to be loaded on any conveyance, or water-borne, or attempted to be water-borne for being loaded on any vessel, the eventual destination of which is a place outside India, without the permission of the proper officer shall be liable to confiscation;" Thus any goods which are loaded on to a vessel without the "Let Export" order issued by the proper of customs shall be liable to confiscation. In such an eventuality, under Section 114, - "Any person who in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable,- (i) in....
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.... arrival and departure of the vessel are made known in advance to all parties concerned by the shipping line. It is for the CHA to complete the formalities before the departure of the vessel. In the present case, the CHA informed the freighter broker about non-obtaining of the LEO a few hours after the vessel set sail. Therefore, the CHA cannot pass on the blame onto the shipping line and the omission to obtain LEO before departure of the vessel was fairly and squarely on the CHA and for this omission he is liable to penalty under Section 114 and we hold accordingly. 5.7 An identical issue came up for consideration of this Tribunal in the case of Nichrome India Ltd. [2009-TIOL-1902- Cestat-Mum = 2010 (251) E.L.T. 147 (Tri.-Mum.)] and this Tribunal held as follows :- "Section 51 of the Customs Act is not a meaningless provision of law. It provides that the proper officer of customs may make an order for permitting clearance and loading of the goods for exportation, which would mean that the goods for exportation could not be loaded in the vessel without obtaining permission of the proper officer of customs. It is this permission of the proper officer of customs which is r....