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2015 (5) TMI 326 - AT - CustomsPenalty u/s 114(iii) - goods exported by the Appellant were loaded on the vessel by the Shipping line on 9-10-2008, before the "Let Export Order" was passed by the proper officer of customs on 10-10-2008 - Held that:- There is no allegation nor any evidence in the Notice that the Appellant-exporter was aware of the goods having been loaded on to the vessel on 9-10-2008, before the passing of the "Let export order" on 10-10-2008. The Notice itself in para 6 states that the person in charge of the conveyance without confirming from the exporter or Custom House Agent whether customs formalities had been completed and without collecting the Shipping Bill had permitted loading of the goods. Under Section 40 of the Customs Act, 1962 the responsibility has been cast on the person in charge of the conveyance to ensure that the goods are not loaded on the vessel unless shipping bill duly passed by the proper officer has been handed over to him by the exporter. Further under Section 34 of the Customs Act, 1962 the loading of the goods is done under the supervision of the proper officer of customs. The Appellant who is the exporter has no control over the goods or their loading once the goods are carted into the port and the responsibility to ensure that that the goods are not loaded on the vessel before the Shipping Bill is passed is squarely cast on the person in charge of the conveyance under Section 40 of the Customs Act, 1962. The shipping agent has been duly penalized and there is no warrant for imposition of penalty on the exporter who is in no way responsible for the contravention by the Shipping agent. This view is squarely supported by the decision of the Hon'ble Bombay High Court in the case of Commissioner v. Kusters Calico Machinery Ltd. - [2010 (3) TMI 474 - BOMBAY HIGH COURT]. Accordingly the impugned order to the extent it imposes penalty on the present Appellant exporter is liable to be set aside. - Decided in favour of assessee.
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