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TMI Blog2010 (10) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... ery Project and for loading of machinery and equipments imported for Essar Oil Refinery Project under Section 8(a) of the Act. Similarly M/s. Essar Oil Ltd. (the second appellant) were appointed to act as custodian under Section 45(1) of the Customs Act, 1962 only for the purpose mentioned above. 2. On the ground that the goods were landed, unloaded in a place which was not authorized for the purpose by the Commissioner under Section 8 of the Act, proceedings were initiated which has culminated in the impugned order in which the imported goods have been confiscated and an option has been given to the first appellant to redeem the same on payment of fine of Rs. 2 crores in the view of confiscation under Section 125 of the Act. Further penalty of Rs. 10 lakhs each has been imposed on both the appellants. Similarly in the case of a consignment of boiler parts imported by M/s. Essar Power (M.P) Ltd. (the third appellant) also proceedings on the same ground were initiated which culminated into another order No. 4/Commissioner/2009-10 dated 16-11-09/17-11-09. In this order the consignment of boiler parts was confiscated and allowed to be redeemed on payment of fine of Rs. 50 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 7, the Commissioner himself should have issued another notification; having acquiesced in the unloading of the goods at Vadinar port by granting permission and supervising the unloading, the department cannot hold that appellants have committed offence; department cannot take advantage of its own omissions and commissions; the Commissioner could also have given post-facto permission and appellants had made a request to the Commissioner for this; since the mistake was contributed to by both the sides, the Commissioner could have granted post-facto permission; Notification No. 1/2009-10/CCP/Jamnagar which has been issued subsequently has to be held as the one issued with retrospective effect giving effect to the legislative intend of Section 7 of the Act; the rejection of this claim was wrong and since the notification has been issued to give effect to the notification issued under Section 7 of the Act, it has to be necessarily read as retrospective in nature; in any case what has happened is only a procedural violation and no substantive condition has been violated and therefore a liberal treatment was called for and redemption fine and penalties were not warranted. Learned DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of unloading crude petroleum. Vide notification No. 51/97-Cus. (N.T.) dated 29-9-97, the purpose was notified as for : (A) Unloading of following imported goods namely : (i) Crude petroleum oil (ii) Machinery and equipment (including project imports for Essar Oil Refinery Projects) (B) Loading of machinery and equipment imported for Essar Oil Refinery re-project. 6. Subsequently on 10-10-05 Notification No. 93/05-Cus. (N.T.), dated 10-10-05 was issued and the relevant entries were substituted with the following entry : "Unloading imported goods and loading of export goods are any clause of such goods" 7. Commissioner of Customs, Ahmedabad by Notification No. 3/98(CCP) dated 28-4-98 notified the : (i) RO-RO Jetty (ii) LO-LO Jetty (iii) Barge unloading facility (iv) Back area at the Vadinar port As the landing place under Section 8(a) for unloading imported goods and he also specified the same items which had been specified by the Central Government in the Notification No. 51/97-Cus. (N.T.), dated 29-9-97 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landed in a place contrary to provisions of Section 33, goods are liable to confiscation under Section 111(h) of the Act. Section 33 empowers the proper officer to give permission even in places other than the one approved under Section 8 of the Act. Therefore what is to be examined is whether the goods were unloaded without the permission of the proper officer. In this case as submitted by the appellant, the proper officer is the Assistant Commissioner/Deputy Commissioner for the purpose of Section 33 of the Act in terms of Notification No. 8/08-07/CCP/Jamnagar dated 12-1-07. The learned Commissioner has observed that even though the imported goods have been unloaded under the supervision of the inspector/superintendent of Customs who are the proper officers for this purpose, the permission to unload should have been granted by the Assistant Commissioner/Deputy Commissioner who is the proper officer as per the notification. 10. The sum and substance of the facts reproduced above and the legal position is that entry inwards was granted and permission for unloading was given by officers who were not authorised to do so. As per the notification issued by Commissioner under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly stated that the goods are imported by the Notice No. 1 (i.e. M/s. Essar Power Gujarat Ltd.), I find that importation of goods involves series of procedural steps and compliances, which begin with filing of an IGM and culminates on grant of 'out-of-customs charge' under Section 47 of the Customs Act, 1962 by the officer. Normally when the goods/consignment are being imported, it is quite plausible that the officer stationed at port, to impart alacrity to the process of unloading and importation of goods and in view of policy of liberalization adopted of late, instantly grants permission to unload goods without going into the subtle intricacies or nitty-gritty, especially when the personnel submitting the documents were the same who routinely were submitting the documents for and on behalf of M/s. Essar Oil Ltd. (Noticee No. 2) too. Further, the instant case has been detected based on scrutiny of the documents and therefore the supervision or otherwise of the said goods being unloaded on the jetty, would not obliterate the all-vital fact that the goods (i.e. machinery and equipment) were unloaded at Ro-Ro/Lo-Lo jetty wherein contravention of the Notification 03/98(CCP) supra and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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