TaxTMI 
TaxTMI 
2014 (10) TMI 46
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....der Section 112 (a) of Customs Act, 1962. Appeals No.C/49 & 50/2011 are filed by Shri Yunus Fazilli (Director of main appellant) for imposition of penalties under Section 112(a) of Customs Act, 1962. Appeals No.C/36 & 55/2011, C/56/2011, C/57/2011, C/58/2011 & C/116/2011 have been filed by Shri T.V. Sujan (Director of M/s ACT Shipping Ltd.), M/s Mundra Port & SEZ Ltd. (Custondian), Shri Anand Marathe (DGM of Liquid Terminal of M/s MP & SEZ Ltd Mundra), Capt. Umesh Abhyankar (Chief Operating Manager of M/s MP & SEZ Ltd) & Shri D. Mahaptra (Ex.Senior Terminal Manager of M/s Friends Salt Works & Allied Industries Kandla) respectively with respect to imposition of penalties upon them under Section 111(a) or 111 (b) of Customs Act, 1962. 2. Brief facts of the case are that main appellant brought the consignments of goods mentioned below and declared the same as 'Gas Oil' in Form III of Import Manifest on 24.11.2009: Vessel Name Description of Goods Quantity B/L No./Dt. Port of Discharge M.T. 'Rainbow Star' Gas Oil 34272.066 MT PP519/09.05.2009 Mundra M.T. 'Gan-Venture' Gas Oil 5100.00 MT P4966....
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....not applicable. That as per Para 4 of CBEC Circular No.14/2007-Cus, dt.16.03.2007 also transshipment was permissible as the cargo was not one of prohibited category. That in the case of appellants DGFT has clarified that no ITC violations exist if cargo is meant for transshipment. That as per Para 2.3 of the relevant Foreign Trade Policy, the clarification issued by DGFT is binding on all concerned, in view of the following case-laws:- i) Bhilwara Spinners Ltd Vs UoI [2011 (267) ELT 49 (Bom.)] ii) Unimers India Ltd Vs CC Mangalore [2010 (250) ELT 225 (Tri-Bang.)] iii) Amitex Silk Mills Pvt.Ltd. Vs CCE Surat [2006 (194) ELT 344 (Tri-Del)] 3.2 It was also argued by Ld.Advocate that as on merits the case goes in favour of the appellants, therefore, no penalties are imposable upon his clients as none of the persons was individually going to gain from the transshipments. On a specific query from the Bench it was explained by the ld.Advocate appearing on behalf of the main appellant that one consignment came from Middle East an....
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....recipients indicated and no destination country mentioned in the IGMs clearly convey that the main appellant had no intention to transship the cargo which was for diversion within India or for consolidation as claimed and that the transshipment was insisted by the main appellant only once Revenue started investigating into the case. It was strongly argued by ld.A.R. that the adjudicating authority in Para 27.25 of the adjudication order has correctly held that the goods in question do not qualify to be a transshipment cargo as there was no intention to transship the cargo as required under Section 54 of the Customs Act, 1962. vi) That the imported goods kept in the bonded tanks do not remain transshipment cargo if the clearances are not effected within 6 months as required under Section 48 of Customs Act, 1962. That the main appellant did not seek any extension of time even after 6 months of the import. vii) That in the electronic manifest proforma there are fields for specifying (a) port of destination, and (b) cargo movement code. For cargo movement, there are three cod....
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....or transshipment to such customs station, the proper officer may allow the goods to be transshipped, without payment of duty, subject to such conditions as may be prescribed for the due arrival of such goods at the customs station to which transshipment is allowed. 6.1 As per Section 54 (1) of the Customs Act, 1962, appellant is required to file a Bill of transshipment in addition to the cargo declaration or IGM. It is observed from the case records that at the time of storing the liquid cargo (gas oil) into the shore tanks main appellant, through its CHA, filed an application dt.30.11.2009 for storing the liquid cargo (gas oil) into the shore tanks. The description given in the IGM (Form 'C' cargo declaration) dt.24.11.2009 indicated the goods as follows:- Gas Oil 0.5% (This is a transshipment cargo and to be transshipped to any foreign port) 7. It is observed from the cargo declaration that liquid cargo in bulk was not declared as 'HSD'. The word 'HSD' along with gas oil was first mentioned by the main appellant in lette....
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....er and taking of 'gas oil' back to the same place from where partly the cargo originated, suggest that crgo was not for transshipment. As per the contents of the letter dt.30.04.2010 written by the main appellant to the Joint Commissioner Customs Kandla, the main appellant and their CHA were well aware that there are earlier examples where transshipments have been granted and certain importers like M/s Adani Enterprises Ltd have already explored the possibility of supply of HSD to EOUs, units in SEZ and as bunkers for internationally sailing vessels, after warehousing the same. It is observed from the submissions made by ld.A.R. that in the electronic format of IGM there are fields for port of destination and cargo movement code. Such procedural requirements cannot be expected to be ignored by the CHA of the main appellant who is well aware of the transshipment provisions/procedures when acting on behalf of the main appellant and was well aware of the facts the transshipment in other case of methanol was given under similar circumstances for the goods which were freely importable. IGM declaration given in that case is not pressed into service by the appellants to compare as to what....