TMI Blog2009 (7) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... eals that the penalties imposed on the appellants are harsh. Penalties on the exporter and the CHA are Rs. 2.60 lakhs each, which appears to have been determined at 10% of the FOB value of the goods. Under Section 114(iii) of the Act, the quantum of penalty shall not exceed the value of the goods as declared by the exporter or the value that is determined under the Act, whichever is the greater. The penalty on the above parties, is only about 10% of the FOB value of the goods. The penalty on the shipping line is Rs. 4.00 lakhs. By all means, the conduct of the shipping line is far more blameworthy and therefore, the higher penalty on them than what was imposed on the exporter and the CHA cannot be said to be unfair. However, a penalty of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscated and a fine of Rs. 2.60 lakhs was imposed in lieu of confiscation, (b) penalties of Rs. 2.60 lakhs each were imposed on the exporter (appellant in appeal C/l057/08), and their CHA (appellant in appeal No. C/650/08), (c) a separate penalty of Rs. 4 lakhs was imposed on tine shipping line (appellant in appeal C/809/08). 2. The learned Counsel appearing for the exporter and the CHA points out at the outset, that as regards penal liability under Section 114 of the Customs Act she has come across an adverse order of this Bench which was passed in more or less a similar situation. However, the learned Counsel seeks to distinguish the instant case on the strength of certain provisions of the Customs Act. The Tribunal's order referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be imposed except where the goods were cleared under bond/undertaking. The learned Counsel has also submitted, without prejudice to other relevant grounds, that the quanta of penalties imposed on the exporter and on the CHA are exorbitant. 3. The learned Counsel for the shipping line has adopted some of the arguments of the learned Counsel for the other appellants. Further, she has pointed out that the Hon'ble High Court in a similar case reduced penalty from Rs. 5 lakhs to Rs. 2 lakhs in the case of another shipping line. She cited the High Court's order dated 15-7-09 in Customs Appeal No. 57/09. The learned counsel prays for similar reduction of penalty. 4 The learned S.D.R. has argued in defence of the Commissioner's order. He h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods exported without LEO are liable to confiscation under Section 113(g) of the Act. Whoever is found to have committed something paving the way for shipment of the goods without LEO or to have omitted to do so anything to ensure compliance with the requirement of Section 51 of the Act must be held to have rendered the goods liable to confiscation. All the three appellants are coming within this domain and consequently they have a penal liability under Section 114 of the Act. Actual confiscation of the goods is not necessary for this penalty. A mere liability of the goods to confiscation is enough. All the three appellants satisfy this condition. None of the provisions cited by the learned Counsel for the exporter seems to suggest that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Section 51. Section 42 has cast a further burden on the shipping line by providing that they shall not cause or permit the conveyance to depart from the customs station until a written order to that effect has been given by the proper officer. This provision has also to be read with Section 51 of the Act. One document referred to by the learned Counsel for the CHA is a representation dated 20-3-2008 submitted to the Commissioner of Customs (Exports), Nhava Sheva by the Bombay Custom House Agents Association. This representation, which was submitted to the Commissioner for removing certain procedural difficulties in relation to export of goods states, inter alia, thus "The Custom House Agent obtains the 'LEO' from the designated officers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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