TaxTMI 
TaxTMI 
2009 (2) TMI 184
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....NCH, Nhava Sheva. The Commissioner, vide the impugned order, held that the impugned goods exported under the Shipping Bill No. 4911439 dated 12-1-2007 valued at Rs. 39,69,280/- are liable to confiscation under Section 113(f) and (g) of the Customs Act, 1962. Accordingly, he ordered for confiscation of the goods, though the goods were not available for confiscation. He gave an option to the exporter to redeem the goods on payment of fine of Rs. 6,00,000/-. He also imposed penalty of Rs. 4,00,000/- each on the exporter and the CHA under Section 114(iii) of the Customs Act, 1962. 2. Heard both the sides and perused the records. 3. The brief facts of the case are that the exporter had dispatched 4 X 20' containers consisting of 2560 packa....
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.... any genuine attempt to stop the container from being loaded before sailing of the vessel. I find that the Commissioner has presumed that the exporter/CHA had acknowledge that the Shipping line was loading the container without the supervision of Customs and without taking the let export order. In fact, it is the CHA who informed the Customs vide letter dated 8-6-07 about the incident and the exporter themselves had written a letter on 22-5-07 informing the factual position. Further, it is not the case of the Department that the exporter's or CHA's representative was present at the time of loading of the containers or the exporter and/or CHA had instructed the Shipping line to load the containers without taking permission of the Customs aut....
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....he case of the Department that the exporter/CHA knew that the Shipping line is loading the containers on board the vessel and they did not inform the shipping line. Section 40 of the Customs Act casts liability on a person in charge of conveyance and not on the exporter/CHA. 8. There is nothing on record to hold that the exporter/CHA have handed over the containers to the Shipping line for loading after entry into the dock. Being the Customs area, it is under the custody and control of the custodian. In fact, the letter dated 8-6-07 from the CHA states that on 15-1-07, when the CHA went to hand over out of charge Shipping bill to the Shipping Co., at that the time they came to know that the vessel has already sailed. 9. Further, confi....
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.... Court in the case of Hindustan Steel Ltd. v. State of Orissa reported in 1978 (2) E.L.T. J159 (S.C.) has held that penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. The conduct of the exporter/CHA in the present case does not indicate that they had acted deliberately in defiance of law or were guilty of conduct contumacious or dishonest or acted in conscious disregard of their obligation. Hence, the imposition of penalty on them is not warranted in the facts and circumstances of the case. 13. The learned SDR has cited the Tribunal Judgement in the case of M/s. LMJ International ....