TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 907
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....s which has been detected with some hazardous material. 2. For ready reference, the 'Order' portion of the impugned order is reproduced below: ORDER (i) I order for confiscation of the goods under Bills of Entry Nos. 103/IMP/CUS/MDPR/2015 dated 01.03.2015, 105/IMP/CUS/MDPR/2015 and 106/IMP/CUS/MDPR/2015 both dated 02.03.2015 under Section 111 (d), (j), (I) and (m) of the Customs Act, 1962. However I give an option to redeem the goods covered under the aforesaid Bills of Entries except the goods which has been detected with hazardous Azo dye Benizidune on payment of redemption fine of Rs.5,00,000/- (Rupees five lakhs) only under Section 125 of the Customs Act, 1962. (ii) I order for destruction of the goods nder Bills of Entries No. 103/IMP/CUS/MDPR/2015 dated 01.03.2015 and 105/IMP/CUS/MDPR/2015 dated 02.03.2015 which has been detected with hazardous Azo dye Benzidine. However, I give an option to the importer to re-export the said goods on payment of redemption fine of Rs.20,000/- (Rupees twenty thousand) only within 30 days of receipt of the order. (iii) I order for payment of the dirrerential duty to the tne of Rs.83,229/- (Rupees eighty three thousand two hundred twenty....
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.... Section 114AA of the Customs Act, 1962. 3. Briefly stated facts of the case are that three Bills of Entry were filed by M/s Paul Roadways, as Customs Broker, for clearance of goods imported from Bangladesh, through the Mahadipur Land Customs Station, by the importer M/s Uttam and Brothers. The importer had deputed their Authorized Signatory Shri. Biplab Mohanta (Appellant) along with the documents for transacting business from the LCS. The Custom Broker had deputed their H-card holder Sri Khalid Biswas (Appellant) to transact the import consignment. The importer Shri. Uttam Sarkar has taken out the goods from the LCS without any examination report and without 'out of charge certificate' issued by the proper officer of Customs. The Officers of DRI intercepted the consignments and found that the goods were misdeclared in terms of quality, quantity, description and composition. Accordingly, the said goods were seized by the officers under Section 110 of the Customs Act, 1962. In the impugned order, the adjudicating authority confiscated the goods and allowed the same to be redeemed, except the goods which has been detected with hazardous material. The goods which were found with ha....
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....er Section 108 of the Customs Act, 1962 stated that he had no knowledge about the fact that three vehicles supposedly loaded with import consignments of M/s Uttam and Brothers (Bills of Entry Nos. 103/IMP/CUS/MDPR/2015 dated 01.03.2015, 105/IMP/CUS/MDPR/2015 and 106/IMP/CUS/MDPR/2015 both dated 02.03.2015 had left the LCS without completion of examination and without getting clearance, he further submitted that as the Inspector was unwell, the said consignment were not fully examined, though he and the Assistant Commissioner, Malda examined 2/3 samples and as examination was not complete, the report was not recorded and no out of charge was given by him. 52. I also find from the statements of Shri Khalid Biswas and Shri Suseth Pal recorded under Section 108 of the Customs Act, 1962 that those three consignments were duly examined by customs officers at Mahadipur LCS on 03.03.2015 and duties were paid on them. But as the examining Officer was ill, the Bills of Entry were not signed and no examination report and out of charge order was given against the said three consignments and Shri Khalid Biswas accordingly requested he importer vide letter dated 03.03.2015, not to move the sa....
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....rder and after obtaining due authorization and providing guidance to their client they had taken up the job. They were at no point of time informed by their client that the consignment contained mis-declared non-declared or undervalued goods. I however find that the CHA without out of charge order and for this act of omission and commission they are liable to appropriate penal action. 55. I find from the reply of Noticee No. 5, 6 and 7 that they have merely provided the service of their vehicle for carrying the consignments imported under Bills of Entry Nos. 103/IMP/CUS/MDPR/2015 dated 01.03.2015, 105/IMP/CUS/MDPR/2015 and 106/IMP/CUS/MDPR/2015 both dated 02.03.2015 to goods from te incoming Bangladesh truck to their trucks were carried on in front of and under supervision of the Customs Officer at the MLCS. I find that the vehicle owners did not have any direct involvement with this instant importation and were merely hired for transportation and transshipment of goods. Considering their role and scope of activity I hold that the carrier vehicles as referred above are not liable for confiscation under Section 115 of the Customs Act, 1962. 56. I find that Noticee No. 1 and No....
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..... But, they had not informed the Customs about such illegal clearances of the said three consignments in writing. The importer Uttam Sarkar has moved the said consignments out of the customs area taking the entire responsibility for the movement on his own. 7. We find that these findings have been recorded by the adjudicating authority in the impugned order and not disputed. We observe that Suseth Pal and Khalid Biswas are Partner and Employee of the CHA Firm engaged by the importer for the purpose of clearance of the goods, by filing the Bills of Entry and observing the customs formalities of clearance. From the findings recorded in the impugned order, we obseve that they have filed the Bills of Entry properly and presented them for examination and assessment. After assessment, customs duty has also been paid. Since the Bills of Entry were not signed and out of charge certificate was not given, they advised the importer not to move the goods out of the LCS in writing vide their letter dated 03.03.2015. However, the importer took the risk and moved the goods out of the LCS on his own, without listening the advice of the CHA. Thus, we hold that the CHA cannot be held responsible fo....
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..... 9. Two appeals have been filed by the Department against the order of the Commissioner allowing re-export of the goods which has been detected with some hazardous material and non imposition of penalty On Shri. Uttam Sarkar and Shri. Suseth Pal under Section 114AA of the Customs Act, 1962. 10. Regarding the order for re-exportation granted by the Commissioner, we observe that the Commissioner has categorically given his findings that the goods contain hazardous Azo benzidine more than 50 ppm and held that the goods were liable for destruction or re-exported. In terms Board Circular No. 23/2004-Cus dated 15.03.2004 read with DGFT Notification No. 29/(RE- 2004)/2002-2007 dated 28th January 2004, import of textile and textile articles is permitted subject to the condition that they shall not contain any of the hazardous dyes whose handling, production, carriage or use is prohibited by the Government of India. The Test Reports indicate that the instant consignment contains hazardous azo dye Benzedrine more than 50ppm which is prohibited for importation by the government of India under Section 6(2) (d) of the Environment (Protection) Act, 1986 (29 of 1986) read with Rule 13 of the E....