TMI Blog2009 (4) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... ort the container, which is in contravention of the Customs Act, 1962. There is no lapse on their part in the export of the goods. The goods had been exported under a letter of credit and they had received the remittance also. Since the export was under EPCG Scheme, there could be no reason for them not to export the goods in accordance with the provision of Customs Act, 1962. - There is no evidence of any incriminating conduct against the exporter. There is no implicatory allegation in the show cause notice and/or evidence against them so as to attract the provisions of Section 114(iii) of the Customs Act, 1962. – Penalty on exporter not imposable - it is evident that the Shipping Line have knowingly loaded the container on the vessel with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods on payment of fine of Rs. 5,00,000/- under Section 125 of the Customs Act, 1962. He also imposed penalty of Rs. 5,00,000/- on the exporter under Section 114(iii) of Customs Act, 1962. He also imposed penalty of Rs. 10,00,000/- on the Shipping Line under Section 114(iii) of Customs Act, 1962. 2. Heard both the sides and perused the records. 3. Brief facts of the case are that the exporter dispatched container No. PMLU 9019810 consisting of 7 packages (1 set) of LAPP SEAM WELDER, from their factory. The said container was loaded on the Vessel M.V. Deja Bhum V.25 sailing on 20-8-2006, though the documents were showing the name of Vessel as M.V. Kota Periwara sailing on 24-8-2006. The goods were being exported under Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shipping Line so that the container could be loaded on the Vessel M.V. Kota Periwara, which was to sail on 24-8-2006. 4.1 From the above sequence of events, it is clear that the exporter did not have any intention to export the container in any manner, which is in contravention of the Customs Act, 1962. There is no lapse on their part in the export of the goods. The goods had been exported under a letter of credit and they had received the remittance also. Since the export was under EPCG Scheme, there could be no reason for them not to export the goods in accordance with the provision of Customs Act, 1962. 5. There is no evidence of any incriminating conduct against the exporter. There is no implicatory allegation in the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor clearec1 under bond/undertaking. The Hon'ble High Court, after considering the Apex Court's judgment in the case of Weston Components reported in 2000 (115) E.L.T. 278 (S.C.), held that redemption fine cannot be imposed in the absence of the goods, which had already been released by the Customs authorities to the importer, without execution of any bond/undertaking by the latter. This judgment is reported in 2008 (229) E.L.T. 185 (P H). Larger Bench of the Tribunal in the case of Shiv Kripa Ispat (Pvt.) Ltd. v. Commissioner of Central Excise, Nasik - 2009 (235) E.L.T. 623 (Tri.-LB) and Commissioner of Customs v. Rishi Ship Breakers vide Order No. M/43-44/09/SMB/LB dated 19-1-2009, relying upon the Punjab and Haryana High Court judgment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay High Court. I find that if the decision is under challenge, its correctness is in jeopardy and it does not have precedent value, as has been held by the Tribunal in the case of Commissioner of Central Excise, Chennai-II v. BOC India Ltd. reported in 2007 (212) E.L.T. 222 (Tri.-Chennai). For holding so, the Tribunal has relied upon the Hon'ble Supreme Court judgment in the case of UOI v. West Coast Paper Mills Ltd. reported in 2004 (164) E.L.T. 375 (S.C.). Therefore, placing reliance on the Tribunal's decision dated 29-11-2007 in the case of M/s. LMJ International Ltd. and Others (supra) will not be in order as it has not yet attained finality. 8. As regards Shipping Line is concerned, they have contended that the container was loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Shipping Line had loaded the container on vessel M.V. Deja Bhum, which sailed on 20-8-2006. It is for the Shipping Line to take on board only those containars in respect of which "Let Export Order" is given by the proper officer of Customs. Thus it is evident that the Shipping Line have knowingly loaded the container on the vessel M.V. Deja Bhum, V.25 without having the Shipping Bill and "Let Export Order" on the Shipping Bill from the proper officer of Customs thereby violating the provisions of Section 40 of the Customs Act, 1962. By their conduct, they have rendered the goods liable to confiscation under Section 113(g) of the Customs Act, 1962 and rendered themselves liable to penal action under Section 114(iii) of the Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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