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2017 (3) TMI 214 - AT - CustomsDenial of DEPB benefit - penalty u/s 114(iii) of the CA, 1962 - export of almost 110 cartons of 100% cotton knitted men and women shirts - 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 - whether penalty on each of the appellants is justified in the facts and circumstance of the case? Held that: - the principle laid down for imposition of penalty on the exporter and the CHA in various judgments is consistent in observing that once the factory stuffed container is gated in, no control remains with the exporter and/or CHA, hence , in the event of sailing of the vessel with the container of exported goods before issuance of LEO, imposition of penalty on the exporter and the CHA is unwarranted - In the present case, there is no substantial evidence either against the exporter or the CHA brought on record attributing their involvement for loading of the container and thereafter sailing of the vessel,l without LEO, resulting into contravention of relevant provisions of the Customs Act namely 34, 40 and 51 of the said Act - penalty on the appellant exporter M/s Arvind Mills Limited and the CHA M/s Chinubhai Kalidass & Bros cannot be sustained, accordingly, set aside. Penalty on surveyor - On behalf of surveyor, M/s Master Marine Services Pvt. Ltd it is vehemently argued that only because they prepared the Form No.6, therefore, they cannot be penalized - Held that: - the CHA addressed a letter to CFS, Mundra 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 - the container was loaded and later sailed without the LEO and in violation of the relevant provisions of Customs Act,1962, without the involvement of surveyor - penalty imposed on them is also set aside. Penalty on shipping agent - Held that: - considering the active role of the shipping line agent, in discharging/loading the export cargo on the vessel, ld. Commissioner has rightly arrived at the conclusion that for sailing/export of the said container on 28.6.2006 without LEO, the shipping line agent is at fault and accordingly penalized them - penalty imposed on the shipping line agent is too harsh as no evidence for intentional violation of the provisions of the Act has been brought on record, but their act or omission attributes to negligence or lack of co-ordination/communication - penalty on the shipping line is reduced to ₹ 50,000/-. Penalty on the terminal operator M/s MICT - Held that: - imposition of penalty not justified, as as before loading the container in the vessel they had been communicated by the shipping line agent through the advance export list mentioning therein the list of containers that were to be loaded - penalty set aside. Appeal disposed off - decided partly in favor of appellant.
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