TaxTMI 
TaxTMI 
2017 (3) TMI 214
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....pping bill, Customs Preventive staff was deputed for verification, but it was noticed that the containers loaded on vessel MV Mac Andrews America sailed from Mundra Port at 13.30 hours on 28.6.2006, without examination and assessment of documentation; also without Let Export Order permitting clearances by the proper officer. All relevant documents namely, checklist for shipping bill, invoice, packing list, computerized sheets of MICT etc. resumed under Panchnama dated 28.6.2006 and thereafter statements of various persons were recorded and on completion of investigation, a show cause notice was issued alleging violation of various provisions of Customs Act, 1962 and proposed for confiscation of the goods along with container, denial of DEPB benefit to the appellant M/s Arvind Mills Ltd. and also proposal for imposition of penalty under Section 114 (iii) of the Customs Act, 1962 on the exporter M/s Arvind Mills Limited and other appellants. On adjudication, ld. Commissioner of Customs imposed penalty of Rs. 8 lakhs on each of the appellants, M/s Arvind Mills Ltd., M/s Chinubhai Kalidas & Bros., M/s Volkart Fleming Shipping & Services Pvt. Ltd; Rs. 5 lakhs each on Mundra Internationa....
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.... issued by the steamer agent for gating in the containers into the Mundra International Container Terminal (P) Ltd. (MICT).The appellant undertook to hand over the shipping bill with LEO to the steamer agent. The container was gated in on 24th June, 2006 (Saturday); 25th June 2006 was a Sunday, hence shipping bill was filed on Monday, 26th June, 2006. When the appellant - CHA was in process of completing the Customs formalities, however, on Tuesday, 27th June, 2006, the steamer agent loaded the container on the vessel without their knowledge and permission and also the vessel sailed on Wednesday, 28th June, 2006. The appellant - CHA came to know of this fact while making an attempt to locate the containers along with Customs officer for scrutiny of the description of goods and learnt that the container loaded on vessel had already sailed. 5. Ld. Advocate further submitted that penalty under Section 114 (iii) of the Customs Act, 1962 was imposed on the ground that Sections 34 and 40 of Customs Act, 1962 were violated. It is his contention that these two provisions are do not applicable to either the exporter or the CHA. Ld. Advocate submitted that the appellant - CHA never prompted....
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....e List, the vessel agent loads container into vessel. The appellant never prepared Export Advance List nor was a party to it. As the container was loaded in the present case based on the Export Advance List prepared by the shipping line, the appellant is not liable for the act for which penalty was imposed. It is his argument that the appellant was never appointed by shipping line to prepare Export Advance List based on which the container was loaded into the vessel. It is his contention that Section 40 of the Customs Act imposed responsibility on a person in-charge of conveyance to permit loading of container at Customs Station upon receipt of shipping bill duly endorsed by the proper officer. Such responsibility cannot be extended to the appellant who is merely acted as a surveyor of the shipping line to facilitate to bring container from yard to port area. He submitted that on identical circumstance in the appellant s own case, the ld. Commissioner vide Order-in-Appeal No.417/2009-Cus/Commr(A)/KDL dt.31.8.2009 allowed their appeal and quashed the penalty imposed on them observing that the appellant statutorily not responsible for any act for which goods were liable for confiscat....
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....he provision of law. In support, he has referred to the decision of the Tribunal in the case of C.C (Export), Nhava Sheva vs. Emirates Shipping Agencies (I) P. Ltd. -2011 (271) ELT 101 (Tri-Mumbai). 8. Heard the Advocates for the concerned parties and the Ld. A.R for the Revenue extensively and perused the records. 9. The undisputed facts are that around 110 cartons of 100% Cotton Man s and woman s shirt in container No.CL HU-815922 stuffed in the factory of the appellant-Arvind Mills under the supervision of the Excise officer, after being loaded on the vessel MV Mac Andrews America on 27.6.2006 at 23.35 hrs., exported on 28.6.2006 at 13.30 hours, without Let Export Order (LEO) and pending assessment of Shipping Bill No.6070048 dated 26.6.2006. The ld. Commissioner in the impugned order even though held that the said exported goods are liable for confiscation under Section 113(f) and 113(g) of the Customs Act, 1962 but did not pass any order confiscating the goods since the said goods were not available for confiscation at he material time. He has imposed penalties on all the appellants under Section 114(iii) of the Customs Act, 1962. The limited question now that needs to be ad....
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....stoms Officer and pending assessment of the relevant Shipping Bill. Ld. Commissioner after analyzing the evidence on record and role of each of the appellant in the export of said goods has held that each of the appellant is liable to penalty under Section 114(iii) of the Customs Act, 1962. 11. The procedure that is required to be followed in the export of the manufactured goods, which are factory stuffed, has been stated at Para 4 of the Show Cause Notice. It is stated that the container sealed under the Central Excise supervision at factory received by the shipping line agent or his nominated agent was subsequently placed at the MICT yard on the basis of Form No.6 issued by the shipping agent. Thereafter, the CHA files checklist, for the shipping bill with the Customs EDI System. After processing of the shipping bill necessary verification/examination of the container number and seal number are done which are fed into the EDI system. Thereafter, the LEO was given by the proper officer under Section 51 of the Customs Act and copies of shipping bill are generated. After granting the LEO the containers are allowed to be loaded on board under the supervision of the Customs on the ba....
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....nt in an earlier case. I find that in the show cause notice itself it is acknowledged and stated that Form No.6 is not prescribed document under the Customs Act, 1962 or rules made there under. It is clear from the submission advanced that the same is prepared for the purpose of facilitating entry of the container into the CFS port area. In its letter dated 24.6.2006, the CHA addressed a letter to CFS, Mundra( which later they claimed an error as it is to be addressed to the Shipping line agent) providing the details of the container seal number etc. for issuance of Form No.6 to offload of the container. Also in the daily activity report dated 25.6.2006 prepared by the surveyor, it records the container number, destination etc. but no way these documents could be considered as indicating or allowing loading of the container on the vessel and thereafter for its export. I find force in the contention of the appellant-surveyor that the container was loaded and later sailed without the LEO and in violation of the relevant provisions of Customs Act,1962, without their involvement. Hence, the penalty imposed on them is also set aside. 13. Now, coming to the role of the shipping agent , ....