TMI Blog2011 (9) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... elta Logistics and M/s. Neptune Container Line Logistics Pvt. Ltd. against a common order-in-original No. 126/2009 dated 30.1.2009 passed by the Commissioner of Customs (Export), Nhava Sheva. 2. Brief facts of the case are that three containers were found to be shipped out of India on 21.5.2008 on vessel Wan Hai 317-Voyage E-005 without obtaining Let Export Order (LEO) from the Customs authority. In the shipping bill filed by the exporter, the goods were reported to be Basmati rice and the total FOB value declared of the goods was Rs.46,68,300/-. These containers were called back on 10.6.2008 by the shipping agency and examined on 18.6.2008 by the Customs authorities and on examination, the containers were found to contain 960 bags of Basmati rice as per invoice. Since these three loaded containers had sailed out and attempted to export the goods without proper document and LEO, the same were seized for violation of the Customs Act as the goods were liable for confiscation under Section 113(g) of the Customs Act. Later on, the goods were allowed to be exported on provisional basis on execution of bond by the exporter and duly supported by a bank guarantee furnished by the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing line, who have stated that the containers were loaded not at the instance of the exporter. He, therefore, prayed that there was no role of the exporter with regard to the departure of the goods without obtaining the LEO. He further submitted that since there was no mens rea on the part of the exporter, there should not be any fine and penalty imposable on the exporter and he requested that the fine and penalty imposed on the exporter need to be set aside. He referred to various case law submitted by him as detailed below:- (i) CC(E) vs. Kusters Calico Machinery Ltd. 2010 (257) ELT 368 (Bom.); (ii) Mohini Organics Pvt. Ltd. vs. CC(E), Nhava Sheva 2009 (240) ELT 589 (Tri.-Mumbai); (iii) N. Karim Sons vs. CC(E), Nhava Sheva 2010 (251) ELT 444 (Tri.-Mumbai); (iv) Hindustan Steel Ltd. vs. State of Orissa 1978 (2) ELT (J 159) (SC); (v) Emirates Shipping Agencies (I) Pvt. Ltd. vs. CC(E), Nhava Sheva 2009 (243) ELT 689 (Tri.-Mumbai). 4. The learned counsel for the CHA submitted that insofar as the role of CHA is concerned, the Commissioner has given finding in paragraphs 23 and 24 of the impugned order and in paragraph 25 the learned Commissioner himself has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he shipping line should not be penalized for a lapse which was not in their knowledge at any point of time before the vessel sailed outward. He, therefore, requested that the penalty imposed on the appellant-shipping line should be set aside. He referred to the following case law in support of his contention:- (i) Technospin Pvt. Ltd. vs. CCE(I), Chennai 2008 (228) ELT 420 (Tri.-Chennai); (ii) Kee Yes Impex vs. CCE, Salem 2008 (228) ELT 569 (Tri.-Chennai); (iii) Ahammad Said vs. CCE, Cochin 1999 (110) ELT 496 (Ker.). 6. The learned counsel for the shipping line has made a plea that the penalty on the shipping line has been imposed under Section 114 of the Customs Act. He submitted that under Section 114, there are three situations for imposition of penalty. Under Section 114(ii), the penalty is imposable in case of dutiable goods other than prohibited goods to a penalty not exceeding duty sought to be evaded or five thousand rupees whichever is greater. He submitted that since the goods in question were dutiable goods and not prohibited goods, their case will fall under Section 114(ii) and under this provision penalty cannot be imposed more than the duty involved or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Chennai vs. Bansal Industries 2007 (207) ELT 346 (Mad.), it was held by the Hon ble Madras High Court that the element of mens rea is not required for imposition of penalty. He also referred to the Hon ble Supreme Court s decision in the case of Weston Components Ltd. vs. CC, New Delhi 2000 (115) ELT 278 (SC), where it was held that redemption fine is imposable even after release of goods on execution of bond. 8. On hearing both sides, I find that in this case penalties have been imposed by the Commissioner on the exporter, the CHA and the shipping line under Section 114 of the Customs Act as the goods in this case were loaded on the vessel without obtaining the Let Export Order. Redemption fine was also imposed in respect of the goods exported by the exporter. The fact that the goods were loaded on the vessel and the vessel had left without obtaining the LEO is not disputed by any of the appellants. As regards the exporter and the CHA, under Section 50 they are required to complete all the formalities and get the assessed copy of the shipping bill from the Customs officer for further loading of the goods on the vessel, which has not been done in this case. Therefore, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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