TMI Blog2013 (8) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... separately - such items were already a part of MOA and could not had escaped the attention of the AO – Penalty set aside – Decided in favor of assesse. Dissenting Judgement - Member (Technical) was not in consonance with the opinion of the Member (Judicial) – He delivered separate Judgement as to against the assesse – the Third Member was into the favor of assesse. - C/547/2005 - A/709-710/2012-WZB/AHD - Dated:- 23-5-2012 - Ms. Archana Wadhwa and Shri B.S.V. Murthy, JJ. Shri N.K. Oza, Advocate, for the Appellant. Shri D.S. Negi, SDR, for the Respondent. ORDER The challenge in the present appeal is to imposition of penalty of Rs. 50,000/- on the master of the vessel on account of non-declaration of 700 MT of cement, two Dozer Caterpillar and one motor bike in the IGM. As regards cement, we find that the adjudicating authority has already accepted that the same was hardened and as such was rubbish. However, he further observed that even the same could have been declared by the master. We find that on account of the fact that the cement had become rubbish, the captain might be under bona fide belief that the cement was not required to be declared in IGM. 2. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of Circular No. 37/96, dated 3-7-1996, the bike was considered as part and parcel of the vessel. 7. Value of the vessel is around Rs. 10 crores, whereas the value of the motorbike is only Rs. 5,050/- and as such, insignificant. Law should not take cognizance of the trifles and it has to be concluded that separate non-declaration of the above goods was not account of any mala fide to mislead the customs but was as a result of bona fide belief and understanding of law. 8. Tribunal in the case of M/s. Essar Oil Ltd. 2002 (142) E.L.T. 657 (Tri.-Mum.) has held that in the absence of any mala fide, imposition of penalty on steamer agent under Section 112 of the Customs Act was not called for. It is trite law that for attracting penalty knowledge of the offended has to be brought out. As already observed, the captain could be under a bona fide belief that the above items being part and parcel of the vessel, on account of the Board s Circular are not required to be declared separately. Further, such items were already a part of MOA and could not have escaped the attention of the Assessing officers. 9. As such, it can be reasonably concluded that non-declaration was not on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduce nor could he explain their relevance or otherwise. 13. I find that there is no dispute that there was an omission on the part of the Master of the vessel and shipping agent during the submission of the IGM. IGM did not contain all the items that are on board ship. Master of the vessel in his statement dated 10-4-2002 clearly stated that caterpillars were used in another vessel to collect the cement for loading in the vessel which goes to show that dozer caterpillars were not part of this vessel. Shri D.V. Gajjar, Proprietor of Shipping Agent also stated that dozers were not part of the vessel. Further, in the Grounds of Appeal, it has been stated that the appellant was not aware about the terms and conditions of the MOA. In this case, the ship had been imported into India for breaking and therefore, there was an MOA available and in the MOA all the items had been listed. In the normal case, this does not happen. IGM is a very important primary document which contains all the goods on board the vessel including those which are in transit. For the customs department it is very important since for examining whether all the cargo brought in a ship have been cleared or not is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08, dated 10-11-2008, difference of opinion was recorded as under : Whether the appeal is to be allowed in its totality by setting aside the penalty on the appellant as held by Member (Judicial) or penalty is required to be reduced to Rs. 10,000/- as held by Member (Technical). 16. The matter was referred to the Hon ble President to nominate a third Member to decide on the difference. Hon ble President in his order dated 10-8-2010 observed that the two Members cannot refer the entire appeal because of difference of opinion instead of making a statement referring the point or points of difference between them. He relied upon the decision of the Hon ble Gujarat High Court in the case of Colourtech v. UOI reported in 2006 (198) E.L.T. 169 (Guj.) = 2008 (9) S.T.R. 426 (Guj.) reiterated by the Hon ble High Court in the case of CCE Cus. v. Jagat Texturising reported in 2010 (255) E.L.T. 353 (Guj.) = 2010 (20) S.T.R. 564 (Guj.). With these observations, Hon ble President directed that the matter be returned and placed before the concerned Bench. 17. As directed by the Hon ble President, the difference of opinion is revised as under : DIFFERENCE OF OPINION (i) Whether the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) come to the conclusion that assessee has not declared the movable and unmovable items, as the same was not declared before the lower authorities. It is his submission that the penalty imposed on the appellant is on the ground that being the master of vessel, has filed improper declaration of consignment on the vessel. It is his submission that the said vessel was part of the vessel brought in for ship breaking. It is his submission that the penalty which is reduced by the learned Member (Technical) to Rs. 10,000/- is also not imposable, as the assessee has filed the Cargo manifest as required under law. He would rely upon the decision of the Tribunal in the case of Chidzhavadzhe v. Commissioner of Customs, Cochin - 2007 (9) LCX 226 = 2008 (222) E.L.T. 306 (Tri. - Bang.), and the case of Hindustan Steel Ltd. v. State of Orissa - 1969 (8) LCX 2 = 1978 (2) E.L.T. (J159) (S.C.), and H.K. Shipping services Pvt. Ltd. v. Commissioner of Customs (PREV.), Ahmedabad - 2000 (8) LCX 317 = 2000 (121) E.L.T. 828 (Tri. - Mum.). 20. Learned departmental representative on the other hand, would support on the order of the Hon ble Member (Technical). It is his submission that filing of import man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mobile equipment , in may considered view there cannot be any confiscation under Section 111(f) of the Customs Act, 1962. Consequently there cannot be any penalty on the appellant. 24. In view of foregoing the difference is answered as :- (i) The items namely motor-cycle and dozer caterpillars were declared by the assessee in the IGM in the Cargo declaration filed by the appellant before the lower authority. (ii) The dozer caterpillar was declared as a mobile equipment of ship. (iii) The motor-cycle has to be considered part and parcel as the Cargo declaration indicates it as Boatswain Store . (iv) Factually there is declaration of motor cycle in the Boatswain Store . 25. In view of the above, findings arrived by the learned Member Judicial is correct and I agree with the same. 26. In view of the above, registry is directed to place the file before the bench to take further necessary action. Sd/- (M.V. Ravindran) Member (Judicial) FINAL ORDER 27. In view of the majority order, the impugned order imposing penalty of Rs. 50,000/- on the appellant are set aside and appeal is allowed with consequential relief. Cross Objections filed by the Revenue also gets d ..... 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