TaxTMI 
TaxTMI 
2015 (12) TMI 1042
X X X X Extracts X X X X
X X X X Extracts X X X X
.... passed by the Commissioner of Customs(Prev.), W.B., Customs House, Kolkata-01. Under this Order-in-Original dated 08.07.2014 Adjudicating Authority confiscated 4460 M.T. of Canadian whole yellow Peas, imported by M/s.Agritrade India Services Pvt.Ltd., under Section 111(h) and 111(o) and allowed the same to be redeemed by making a payment of Rs. 2.5 Crores as redemption fine under Section 125 of the Customs Act, 1962. Both the barges M.V. Jyeshtharaj (IMO-9664598) & M.V. Pashyanti (IMO-9664653) were also confiscated under Section 115 of the Customs Act, 1962 and allowed redemption fine on payment of Rs. 1.4 Crores as redemption fine. Penalties of Rs. 1.00 Crore, Rs. 50.00 Lakh & Rs. 2.00 Lakh were respectively imposed upon appellants M/s.Ag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g during that period (fortnight) and to avoid demurrage and other costs. Accordingly, two barges, namely, MV Jyaestharaj and MV Pashyanti, who were available nearby at that point of time, were engaged by the stevedore as substitute of the said unavailable listed barges for loading of cargo and both such barges are licensed inland barges of Indian Flag duly registered and authorized to operate for the said purpose. Such substitution of barges, as and when the listed barges are not available, has been a permissible prevalent practice. 2.3 That MV Jyaestharaj and MV Pashyanti reached alongside the vessel MV Dubai Crown at 08.30 hrs on 19th May, 2014 and were loaded with about 4460 MT of yellow peas of the Appellant. Nobody took any objectio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tee" of Rs. 3.5 Crores vide Order dated 13.08.2014 fo Hon'ble Calcutta High Court in WP No.658 of 2014. 2.7 That in the backdrop of the above facts, it is humbly submitted that: (1) Under Section 111(h), any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of Section 33 or Section 34 are liable to confiscation. "Dutiable goods" have been defined under Section 2(14) as dutiable goods means any goods which are chargeable to duty and on which duty has not been paid. Since the impugned goods are fully exempt as aforesaid, they are not chargeable to duty at all in terms of the first part of the said definition, nor are they the goods on which duty has not been paid in terms of the secon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t apply. 2.9 That there has not been and could not have been any motive (for any undue gain or something alike) behind the entire chain of actions and the alleged violations. Through the infraction or any alleged violation, the appellant does not gain anything unduly. Mens-rea being the driving force in the commission of an offence, is absent right through; this also makes imposition of any redemption fine and penalty very harsh and unreasonable. 2.10 That provisions of law on the basis of which the adjudication order has been passed, having been found inapplicable to the facts of the present case, the adjudication order itself becomes baseless, unsustainable in law and deserves to be set aside. 2.11 That at best, there may be cert....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o take action against his client under the relevant CHA Regulations. He made the bench go through para 6 of the case law Ryan Sea Air Agent vs. CC(I) Mumbai [2014 (313) ELT 802 (Tri-Mumbai)] in support of his argument. It was his case that CHA has only acted as per the documents furnished by the importer and no penalty under Section 112(a) of the Customs Act, 1962 is attracted. 4. Shri S.Sharma, Commissioner(AR) appearing on behalf of the Revenue argued that all the submissions regarding "dutiable and prohibited goods" mentioned in Section 111(h) of the Customs Act, 1962 and justification given by the appellant, regarding not taking of permission, were not subject matter of the Adjudication before the adjudicating authority. That the cas....