TaxTMI 
TaxTMI 
2024 (5) TMI 630
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....examination and without LEO. The said container was called back on 21-01-2013 and taken for further examination. The same was seized under panchanama dated 20-02-2013. During the course of investigation statements of various persons as under were recorded by the Departmental Officers. a. Shri. Ashok Kumar Bissa - GM of the Appellant b. Shri. Vijay Maheshwari - Sr. Executive of Shipping Line c. C. Shri. Moncy George - Sr. Manager of Shipping Line Since, the goods were exported prior to issuance of LEO by the Proper Officer, the Additional Commissioner (DP), Customs House, MPSEZ, Mundra issued a Show Cause Notice No. S/DP-24/MP&SEZ/2013 dated 03/05/2013 to the Shipping Line, the Appellant and the Custodian directing them to show cause as to why penal action under Section 114 (iii) of the Customs Act, 1962 should not be taken against them. The Appellant vide their letter dated 04-06-2013 filed their reply in defense of the SCN and requested to drop the same. However, the Addl. Commissioner, Customs House, MP & SEZ, Mundra rejected contentions of the Appellant and passed the Order-in-Original No MP&SEZ/45/12- 13 dated 25-03-2014 imposing penalty of Rs. 1 lakh upon the Appellant ....
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....dated 01-03-2013 admitted that the incident took place due to mis-communication of their surveyor. In other words, the Shipping line has not dis-owned their responsibility and therefore the findings of the lower authority forming the basis for imposition of penalty on the Appellant under Section 114(iii) are grossly erroneous and not legally sustainable. ii. That while holding the Appellant guilty for violation of Sections 34, 40 and 51 of the Customs Act, 1962 the lower authority failed to appreciate that the said Sections were not invoked in the Show Cause Notice against the Appellant. As such, the Order in Original was passed beyond the scope of the Show Cause Notice which is not legally sustainable. It is a settled law that Order of adjudication cannot travelled beyond Show Cause Notice and therefore imposition of penalty is not warranted as held in the decision of Honorable CESTAT in the case of Cargomar Vs. CC, Trichi reported in 2007 (215) E.L.T. 317 (Tri. Chennai). iii. That the there is no mandatory provision under the Customs Act putting the CHA under the obligation to inform the Shipping line that the LEO was not available with them and therefore Shipping line should....
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....nfiscation of the goods and therefore penalty under Section 114(iii) of the Customs Act, 1962 is not legally sustainable upon the Appellant as there was no act of omission or commission on their part, which rendered the goods liable for confiscation under Section 113(g) as alleged in the SCN. It is a settled law that when the goods are not liable for confiscation due to any act of commission or omission, no penalty can be imposed as held in the decision of Hindustan Cargo Ltd Vs. CCE, Chennai reported in 2007(220) ELT 349 (Tri-Chennai). x. That neither Show Cause Notice nor the impugned Order records any specific act on the part of the Appellant which rendered the goods liable for confiscation under Section 113 (g) of the Customs Act, 1962. Therefore, in absence of any evidence of any incriminating conduct on the part of the Appellant penalty under Section 114 (iii) is not justified in terms of the decision of Honorable CESTAT, Mumbai in the case of Mohini Organics Pvt. Ltd. Vs. CC (Export) Nhava Sheva reported in 2009 (240) E.L.T. 589 (Tri.- Mumbai). xi. That the lower authority ought to have held that once the container was inwarded in the Port/Terminal the Appellant had no c....
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.... to the declaration as to the truth of its contents. Section 51 of the Customs Act provides that the proper officer of customs may make an order for permitting clearance and loading of the goods for exportation, which would mean that the goods for exportation could not be loaded in vessel without obtaining permission of the proper officer of customs. The other legal provisions covered in the matter is that: As per Section 34 of the Customs Act, 1962 the goods cannot be unloaded or loaded on the vessel except under the supervision of the proper officer. As per Section 40 of the Customs Act, 1962, the person in-charge of the vessel under obligation not allows any goods on board unless the proper documents, duly passed by the proper officer are handed over to him. Failing which, the goods are liable for confiscation under Section 113 (f) and 113(g). All these provisions have clear nexus to Section 51 of the Act. 23. It is very much clear from the above provisions that the exporter or any person on behalf of him who have filed the shipping bill has to wait for permission of the proper officer of customs for clearance of loading of the goods for exportation. In the instant case, it cl....