TMI Blog2013 (9) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... ed leather attracted duty at specified rate under the tariff but Exemption Notification No. 21/2002-Cus. (as amended) granted full exemption from payment of duty thereon - during that period, the Revenue was not entitled to charge any duty on the goods - Where duty was not so chargeable, the goods were said to be not chargeable to duty and, by virtue of the above definition, they were not dutiable goods - Where the goods were not dutiable, the penalty u/s 112(a)(ii) of the Customs Act was not liable to be imposed on the importer of the goods - order to the extent it was in challenge was liable to be set aside - Decided in favor of assesse. - Appeal No.E/362/2011 - Final Order No. A/10167/2013-WZB/AHD - Dated:- 7-2-2013 - Mr. M.V. Ravindran and Mr. B.S.V. Murthy, JJ. For the Appellant: Shri V.K. Jain, Adv. For the Respondent: Dr. Jeetesh Nagori, Addl. Commr.(AR). JUDGEMENT Per: M.V. Ravindran: This appeal is directed against Order-in-Original No.03/Commissioner/ 2011, dt.17.06.2011. 2. The relevant facts that arise for consideration are that appellant had filed Bill of Entry No.F-43 dt.21.06.2010 for clearance of certain capital goods imported by them per ves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leared after obtaining out of customs charge order. As such, there is no evasion of duty. Only because of the act of omission in not producing the goods viz. Coker Fractionator for examination and removing the same before obtaining out of customs charge order from Customs has rendered the said goods along with the carrier/conveyance liable for confiscation under Section 111(i) and Section 115 of Customs Act, 1962 respectively. Moreover, the goods in question are not even for trading activity or for earning profit out of sales of these goods to the third party. Keeping all these facts into consideration and also the findings discussed in earlier paras, I take lenient view in the matter and pass the following order:- (i) I hereby order confiscation of the goods viz. Coker Fractionator valued at Rs.33,97,77,309/- imported per B/E No.F-43 dt.21.06.2010, which was seized under Panchnama dt.06.07.2010 under Section 111(j) of Customs Act, 1962. However, I give an option to M/s Essar Oil Ltd, Vadinar to redeem the same on payment of redemption fine of Rs.50,00,000/- (Rupees Fifty Lakhs only) in lieu of confiscation in terms of Section 125 of Customs Act, 1962. The said option should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd next 24 packages were also put up for inspection, but due to over-crowding of the jetty, this particular Coker Fractionator was taken out of the Customs area without any inspection. For this purpose, he would draw our attention to the dates and the events and also the boat note which showed the movement of the cargo. It is his submission that the provisions of Section 111(j) of Customs Act, 1962 is not in applicable as that particular Section is applicable only when there are dutiable or prohibited goods that should have been removed or attempted to be removed from Customs area or warehouse without permission of the proper officer. It is his submission for the purpose of confiscation under Section 111(j) of Customs Act, 1962, the imported goods should be either dutiable or prohibited. It is his submission that there is no dispute that the Coker Fractionator is not prohibited; it is his submission that the term dutiable goods has been defined in Section 2(14) of the Customs Act to mean that any goods which are chargeable to duty and on which the duty has not been paid. It is his submission that the discharge of entire cargo from the vessel into the jetty was after the payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s:- i) Oceanic Shipping Agency Pvt.Ltd. Vs CC, Calcutta 1996 (82) ELT 57 (Tribunal) ii) Panorama Electronics Pvt. Ltd. Vs. CC (Port) Calcutta 2001 (130) ELT 877 (Tri-Kolkata) iii) Imperial Trading LLC Vs CC (Import), Nhava Sheva 2005 (181) ELT 29 (Tri-Mumbai) iv) Allanasons Pvt. Ltd. Vs CC (Prev.) Mumbai 2003 (156) ELT 384 (Tri-Mumbai) v) Chicago Pneumatic India Ltd Vs CC Mumbai 2003 (156) ELT 384 (Tri-Mumbai) 7. In rejoinder, ld.Counsel would bring to our notice that in an identical issue, where the provisions of Section 2(14) was interpreted by the co-ordinate Bench of the Tribunal in the case of Jai AR Enterprises - 2007-TIOL-428-CESTAT-MAD. It is his submission that the adjudicating authority in Final Order has held that the goods are part of the consignment which was imported and the benefit of EPCG scheme was claimed and allowed. He would also rely upon the decision of Hon ble Apex Court in the case of Associated Cement Companies Ltd Vs CC 2001 (128) ELT 21 (SC), for the proposition as per Section 2(14) of Customs Act, 1962 only those goods are dutiable goods which are chargeable to duty and on which duty has not been paid. 8. We have considered the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 27.06.2010 7 909 01.07.2010 1 910 30.07.2010 2 911 04.08.2010 4 912 04.08.2010 4 913 04.08.2010 3 914 05.08.2010 3 915 05.08.2010 3 916 09.08.2010 3 923 23.08.2010 1 1119 25.08.2010 1 1168 26.08.2010 1 1185 13.09.2010 1 1375 19.02.2011 1 1804 14. It can be seen from the above, that movement of cargo from jetty to site had undertaken under various gate passes and this Coker was removed on 01.07.2010 as 37 packages. As already stated hereinabove, there is no dispute that the appellants were allowed to move the 40 packages which were unloaded under the supervision of preventive officers from the Customs Department and were put up for examination and were examined. In this case, we find that there was no specific mention on the reverse of the Bill of Entry as to which 40 packages were examined or allowed to be cleared from the Customs area. The error in removal of Coker F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paid. In the present case, admittedly, during the material period, finished leather attracted duty at specified rate under the tariff but Exemption Notification No. 21/2002-Cus. (as amended) granted full exemption from payment of duty thereon. In other words, during that period, the Revenue was not entitled to charge any duty on the goods. Where duty is not so chargeable, the goods are said to be not chargeable to duty and, by virtue of the above definition, they are not utiable goods. Where the goods are not dutiable, the penalty in terms of clause (ii) under Section 112(a) of the Customs Act is not liable to be imposed on the importer of the goods. Ld. SDR has not claimed further under Section 112. At this stage, ld. SDR is fair enough to cite the Supreme Court s judgment in Associated Cement Companies Ltd. v. CC, 2001 (128) E.L.T. 21 (S.C.). 18. It can be seen that the co-ordinate Bench had followed the law as has been laid down/settled by the Apex Court in the case of Associated Cement Companies Ltd. in paragraph 79 80. In our considered view, the removal of Coker Fractionator from the Customs area by the appellant is inadvertent error and mistake. It is also to be noted ..... 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