2016 (9) TMI 975

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....gents filed EGM No. 41/2012 dated 13.01.2012 as Charter Agents in respect of vessel "MV Universal Barcelona" (hereinafter called as the Vessel) which was calling at Anchorage port, Kakinada for loading of 20,000 Mts. (approx) of Bagged Rice. The subject vessel is of Malta Nationality. The appellant secured port clearance from Customs department on 01.02.2012 which was valid for 72 hours i.e. till midnight of 04.02.2012. Later, vide their letter dated 04.02.2012, they requested for extension of port clearance stating that the subject vessel has not sailed from the port after completion of loading operations due to the dispute between owner and Charters. As requested by appellant the port clearance was amended and extended till midnight of 07....

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....3. On behalf of appellants, the Learned counsel Sh. Dinesh Aggarwal after referring to Section 42 of the Act, argued that there was no violation of Section 42. He submitted that port clearance was given by Customs Department till mid night of 07.02.2012. The vessel had sailed outside the port prior to mid night of 07.02.2012. Though the appellants had surrendered the original of Port Clearance Certificate 08.02.2012, the vessel had already sailed before mid night of 07.02.2012. Till mid night 07.02.2012 there was a valid port clearance issued by the Department and that therefore there was no violation of Section 42 of the Act as alleged. The allegation that the vessel sailed without authorization is not correct, because at the time of sail ....

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....in-charge of a conveyance which has brought any imported goods or has loaded any export goods at a customs station shall not cause or permit the conveyance to depart from that customs station until a written order to that effect has been given by the proper officer.   (2)   No such order shall be given until - (a)  the person-in-charge of the conveyance has answered the question put to him under section 38; (b)  the provisions of section 41 have been complied with; (c)  the shipping bills or bills of export, the bills of trans-shipment, if any, and such other documents as the proper officer may require have been delivered to him; (d)  all duties leviable on any ....

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....he original port clearance certificate in case it is intercepted or for that matter for any other inspections. In the instant case undisputedly the department has issued Port Clearance Certificate which was valid till mid night of 07.02.2012. So also   department does not have a case that the vessel sailed after mid night of 07.02.2012. Therefore, at the time of sail of the vessel from the port, there was a valid Port Clearance Certificate issued by the department. The allegation of the Department that the vessel sailed without issue of Port Clearance Certificate and in violation of Section 42 is not correct and not supported by evidence. Though the appellants surrendered the Original Port Clearance Certificate to the Department o....