TaxTMI 
TaxTMI 
2008 (2) TMI 353
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....rt goods at Mumbai Port and for which M/s. DOSA had executed re-export bond with the Customs in terms of Notification 302/2-8-1976. 3. The Appellants did not disclose to the Customs Department either at Mumbai or Gujarat of the towing away of the barge Nos. DM-Y-1086 & DM-2222 from Mumbai Port to Muldwarka. On the other hand, the Appellants filed two Bills of Entry No. C-8/20-11-96 & C-9/20-11-96 in respect of the barge Nos. DM-2220 & DM-2230 with the Jamnagar Customs brought by them to Jamnagar by a coastal vessel & claimed classification under Chapter sub-heading 8901.90 of the Customs Tariff Act, 1985 & claimed exemption under notification 36/96 dated 23-7-96. However, the Bills of Entry did not indicate the Bill of Lading No. but instead showed a delivery letter dated 16-8-96 of M/s. DOSA indicating the IGM No. 1622, dated 26-6-95 of the Mumbai Custom House under which the said barges arrived at India. 4. The investigations by the Customs revealed that the Appellants M/s. Bedi Shipping Ltd. removed the said four barges from the Mumbai Customs Port area without proper clearances, permissions etc. from the proper officer of the. Mumbai Customs and without following the provisio....
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.... Customs Act, 1962 as applicable to Section 3 of the Foreign Trade (Development & Regulation) Act, 1992. Thus, M/s. Bedi Shipping Ltd. M/s. DOSA and Shri Arvind Shah, Director of M/s. Bedi Shipping Ltd, had contravened Sections 42, 45, 46 & 47 of the Customs Act, 1962 inasmuch as the imported goods were removed from the custody of the Mumbai port to Muldwarka and Jamnagar without proper clearances or by absence of endorsement on the port clearance of the fishing boats, which have towed the barges and cleared the barges without filing a proper bill of entry. Thus, the barges & boats were liable to confiscation and the Appellants liable to a penalty. As a consequence, the notice called upon the Appellants to show cause as to why the barges should not be confiscated under Section 111(d) & (j) of the Customs Act, 1962 and why the fishing boats should not be confiscated under Section 115(2) ibid and why the penalties should not be imposed upon the Appellants under Section 112 ibid. 6. In the adjudication proceedings before the Commissioner, which is the Order impugned, the Appellants submitted that the barges were cleared to Gujarat on the basis of the approval of Ministry of Surface T....
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....pproving the said purchase at the price agreed between their clients and M/s. DOSA; (c) In respect of the two barges set out for Muldwarka, the Appellants had obtained the port clearance on 28-9-96. While in the case of the barges set out for Jamnagar, the barge numbers were mentioned on the port clearances dated 15-10-96 issued by the authorities, due to inadvertence, the barge numbers could not be mentioned on the former Port clearances certificates dated 28-9-96; (d) The four barges were seized on 27-11-96 & 23-12-96 respectively & provisionally released on the execution of bank guarantee for Rs. 20 lakhs; (e) At the time of the entry of the barges into India, their import was allowed and the same were assessed to nil rate of duty vide notification 302/76. Hence, confiscation of the barges under Section 111(d) of the Customs Act, 1962 was not warranted; (f) As on the date of import, the barges were validly imported into the country by M/s. DOSA and that subsequent acts do not render the import unauthorized & relied upon the judgment of the Hon'ble Supreme Court in the case of UOI v. Sampat Raj Duggar (1992 (58) E.L.T. 163 (S.C.) in this connection. this case law, it was subm....
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.... from the two show cause notices and hence the findings of the Commissioner (Imports) are correct and are required to be upheld. 11. We have carefully studied the rival submissions. At the outset, we find that the issue is whether the Appellants' action to clear the four barges was in contravention of the provisions of the Customs Act, 1962. The notices allege that the Appellants had violated the provisions of Sections 42, 45 & 47 of the Customs Act, 1962. 12. We find that Section 45 places a restriction on the custody and removal of imported goods. All imported goods, unloaded in a Customs area shall remain in the custody of the Commissioner of Customs until they are cleared for home consumption. The person having custody of the imported goods in a Customs area shall keep a record of such goods and send a copy thereof to the proper officer; shall not permit such goods to be removed from the Customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer. Section 46 provides for entry of goods on importation. Here, the importer of any goods shall make entry thereof by presenting to the proper officer a bill of entry for ho....
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.... in confiscation of the same. We find that the barges which arrived at India were meant for re-export and for which M/s. DOSA had executed a Bond before the Customs. It is on record that even as on date there is no application from M/s. DOSA for de-bonding of the barges as the bond is still in force as on date. This means that in the record of the Mumbai Customs i.e. the proper officer, the four barges are in bond only. The evidences gathered so far reveal that neither M/s. DOSA nor M/s. Bedi Shipping Ltd. and other Appellants informed the proper officer of the Mumbai Customs about the sale of the barges in India and its consequent discovery in Muldwarka and Jamnagar. The whole case came to light only when the Gujarat Customs began investigating the case and when the Appellants were called in for questioning. The evidences gathered and relied upon by the Respondents clearly indicate that the proper officer of the Mumbai Customs was not informed about the sale of the barges by M/s. DOSA or M/s. Bedi Shipping Ltd. or its Director. M/s. Bedi Shipping Ltd. purchased in India four imported barges towed by fishing boats, which left Mumbai Port for Muldwarka port & Jamnagar port. This fac....
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....rt of two barges Nos. DM-2220 & DM-2230 were filed at Jamnagar Customs, when all the four barges were originally berthed in the Mumbai Port and no Customs clearances undertaken. We also find that the Appellants have also not sought any written permission from the Mumbai Customs to permit them to file the bill of entry at Jamnagar instead of at Mumbai. Under the Customs Act, 1962, there is no provision to transport the imported goods to be suo motu taken on a coastal vessel within the territorial waters of India without complying with the Customs law and procedure. The whole scope of filing the bills of entry for two out of the four barges smacks of mala fide intention and it is difficult to come to a precise conclusion as to why two bills of entry were filed for only two barges out of the four. We find that under such circumstances, the sum total of the intention on the part of the Appellants is required to be taken into account and not in bits and pieces. In order to arrive at the root of the whole transaction, it is but necessary on our part, in order to uphold justice, to look at the whole case from the point of view of a single case of violation of the Customs laws. Here too, w....
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....y clear that the Appellants had illicitly removed the four barges from the Port Area of Mumbai without the knowledge of the proper officer of Customs at Mumbai and, therefore, we uphold the order of the imposition of penalties and the confiscation ordered by the Commissioner. 16. The appellants have also made certain submissions with regard to the documents produced by them before the Gujarat Customs. In our view, this does not come to their rescue. The jurisdiction for the assessment of the goods under question is Mumbai and no matter how legal the documentation may be, yet by virtue of the Tribunal being a creature of the statute and considering the fact that the Customs Act, 1962 is a Parliamentary enactment, the law calls for the strict interpretation of the taxing statute and the penal provisions are thus required to be strictly interpreted and applied. Hence, the law enjoins upon us to restrict ourselves to the requirements of the provisions of the Customs Act, 1962 at the Mumbai Port only and any fulfillment at the port of Gujarat would be without jurisdiction. However, we would still like to offer our findings on the investigations conducted at Gujarat. Here, we find the c....
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.... Mumbai clearly indicts the Appellants. This being the position, we observe that there has been a substantial violation of the provisions of the Customs Act, 1962. Since the four barges have been cleared from the port area illicitly, the question of extending the benefits of any notification, policies etc. as sought to be done post clearances from the Mumbai port would be patently incorrect and as a result of which we hold that the Appellants are not liable to reap the benefits of any notification or a policy in force and the same are rejected. 18. In addition, as on the date when the barges were towed from the Mumbai Customs area, the same were in bond and were meant for re-export. It has come on record that the Appellants M/s. DOSA did not possess any Import-Export Code No., as required under Section 7 of the Foreign Trade (Development & Regulation) Act, 1992, besides there was no valid licence/ approval of the Ministry of Surface Transport, New Delhi at the time of import of the barges, nor the licenses/ approvals were tendered to the proper officer for assessment at the time of the clearances of the barges from the Mumbai Customs, there being no bill of entry filed in Mumbai i....
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.... date. Thus, the Appellants' reliance upon the judgment of the Hon'ble Supreme Court in the case of Associated Cement Company v. Commissioner [2001 (128) E.L.T. 21 (S.C.)] has no place here as the facts are clearly different and the barges are yet under bond meant for re-export. We accordingly reject the contention. 21. Next is the applicability of Notification 133/87. In the instant case; the barges were initially meant for re-export and for which we find that there is a bond executed by M/s. DOSA. However, it is on record that the barges were towed away illicitly for home consumption on 28-9-96 and 15-10-96 respectively as can be seen from the impugned order. The vires of notification became applicable only upon the barges getting cleared in the Mumbai Customs, which we find it did not. Hence, the benefit of Notification No. 133/87 dated 19-3-1987 is not applicable to their case as Section 46 is to be read with Section 25 of the Customs Act, 1962. In any view of the matter, Notification 133/87 has been rescinded on 23-7-1996 i.e. before the barges were towed away by the Appellants M/s. Bedi Shipping Ltd in connivance with M/s. DOSA, which facts indicate that the four barges were....