TMI Blog2009 (3) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... cate 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. - The subject goods, loaded on the vessel without the “Let Export Order from the proper officer of Customs, were not placed under seizure or were not assessed provisionally at the time of export. – Confiscation and fine is set aside - the responsibility of the physical loading of the containers is primarily of the Shipping Line - The Shipping Line should have “Shut Out” the consignment included in the loading list, for which the Shipping Bill duly passed by the proper officer of Customs was not handed over to it. But they failed to do. Hence, the penalty is imposable on them for vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962. 2. Heard both the sides and perused the records. 3. The brief facts of the case are that the exporter dispatched five containers of refrigerators from their factory on 1-9-2006 for export to Morocco. The containers were stuffed in their factory of the exporter. The consignment was planned for export per Vessel MV Emirates Freedom Voy No. 635W scheduled to sail on 4th September, 2006. The consignment was handed over to the Customs House Agent (CHA) for clearance and the CHA filed the Shipping Bill No. 4565816, dated 2-9-2006. The containers were entered into the Port/Terminal on verification of seals by the Customs Officers. The CHA informed the Shipping Line that they would complete the Customs procedure and hand over the Shippi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which made the export goods liable to confiscation. 6. The Shipping Line did not inform the exporter that the vessel would sail on 3-9-2006 instead of the scheduled departure on 4-9-2006 and that the containers were being loaded. The shipping line loaded the containers without the shipping bill duly endorsed by the proper officer with 'Let Export Order' and without the knowledge of the exporter. The exporter had filed the Shipping Bill on 2nd September, 2006. Unless exporter knew that Shipping Line would load the containers without the permission of proper officer, there was no way the-exporter could have done any thing to stop the loading of containers. The Commissioner's order is silent as to whether the 'Let Ship Order' was granted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme 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 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. 10. The learned SDR has cited the Tribunal Judgment in the case of M/s. LMJ International Ltd. and Others v. Commissioner of Customs (Export) Nhava Sheva (Order Nos. A/1626 to 1628/C- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed under seizure or were not assessed provisionally at the time of export. The exporter did not furnish any bond/undertaking at the time of its export. The goods in dispute were not available for confiscation at the time of passing the impugned order. It seen that one of the question of law raised in the appeal filed by the Revenue before Punjab and Haryana High Court the case of Raja Impex Pvt. Ltd. was whether redemption fine under Section 125 Customs Act, 1962 can be imposed where the goods were neither available for confiscation nor cleared 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was scheduled to depart on 4-9-6. However, due to the availability of the window birth on the terminal GT1, the authorities of the terminal requested them and then advanced berthing of the vessel from 3-9-06 to 2-9-06. That as a result of the same, the advance list and planning for the vessel had to be advanced further. As per the operating procedure, a Shipping Line has to submit the 'advance loading list' of the containers to the terminal/customs authorities for loading the containers on board. The CHA of the shipper sent advance loading list for loading of the five containers on the vessel vide e-mail dated 2-9-2006. The cargo containers were allowed to enter the terminal on the basis of the invoice/check list of the said containers t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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