TMI Blog2013 (12) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... short time interval between the arrival of the goods in the port area and the sailing of the vessel could have led to the omission/default on the part of the CHA which could be a mitigating factor - Penalty reduced - Decided partly in favour of assessee. - C/297-298/2009-Mum - Final Order Nos. A/907-908/2012-WZB/C-I(CSTB) - Dated:- 6-12-2012 - Shri P.R. Chandrasekharan and Anil Choudhary, JJ. Shri S.N. Kantawala, Advocate, for the Appellant. Shri Ahibaran, Additional Commissioner (AR), for the Respondent. ORDER The appeals are directed against Order-in-original No. 133/2009 passed by the Commissioner of Customs (Exports), JNCH, Nhava Sheva. As both the appeals arise from a common order, they are taken up together for consideration and disposal. 2. The appellants are M/s. Inox India Ltd. (exporter in short) and M/s. The Universal Traffic Co. M/s. Inox India Ltd. sought to export one cryogenic tank for liquefied gases vide shipping bill No. 6505675 dated 21-7-2008 filed by their CHA M/s. The Universal Traffic Co. The container carrying the goods were loaded on vessel Vira Bhum which sailed on 23-7-2008. However, the let export order for the said goods were obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d penalty are imposable even if goods are not available for confiscation. 5. We have carefully considered the submissions made by both the sides. 5.1 As regards the imposition of redemption fine in respect of goods which are not available for confiscation, a larger Bench of this Tribunal in the Shiva Kripa Ispat Pvt. Ltd. case (cited supra) held that fine is not imposable when the goods are not available for confiscation relying on the decision of the Hon ble Punjab Haryana High Court decision in the Raja Impex case. In the said case the Hon ble High Court held that redemption fine cannot be imposed if the goods are not available for confiscation unless the goods were allowed to be cleared subject to furnishing undertaking/bond etc. In the present case, the goods are not available for confiscation inasmuch as the vessel carrying the goods set sail on 23-7-2008 much before the date of the impugned order. Accordingly, we hold that imposition of redemption fine of Rs. 15 lakhs in the impugned order is not sustainable in law and accordingly we set aside the same. 5.2 The next issue for consideration is whether the CHA is liable to penalty. Sections 50 51 of the Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods to proper checks before allowing final exit out of the country by sea/air/land/rail routes. They also help detect any attempts of smuggling or commercial frauds by unscrupulous parties. 5.4 Para 40 of the Manual specifically provides that - Once, the shipping bill is passed by the Export Department, the exporter or his agent present the goods to the shed appraiser (export) in docks for examination. The shed appraiser may mark the document to a Custom officer (usually an examiner) for examining the goods. The examination is carried out under the supervision of the shed appraiser (export). If the description and other particulars of the goods are found to be as declared, the shed appraiser gives a let export order, after which the exporter may contact the preventive superintendent for supervising the loading of goods onto the vessel. Thus from the statutory provisions and the supplemental instructions issued, it can be easily seen that the responsibility of the CHA does not end with filing of the shipping bill. He has to ensure the assessment of the shipping bill, examination of cargo and obtain the Let Export Order after which he has to contact the customs staf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere off-loaded late on 23-12-2006 but due to the holidays on 24th and 25th, they could obtain the customs clearance only on 26th. In the meanwhile, the vessel set sail on 25th. In those circumstances it was held that the CHA could not have remained present on the day of the holidays and therefore, the CHA had no control over the loading of the goods onto the vessel on that day. Similarly in the Order Nos. A/454 to 456/10 SMB/C-IV, dated 12-8-2010, the facts were that the CHA filed the shipping bill on 17-12-2007 and the LEO was issued on 27-12-2007. The vessel entered the port area on 26-12-2007 and was scheduled to sail on 27-12-2007. However, the vessel sailed on 26-12-2007 itself and the CHA did not have knowledge of loading of the container and sailing of the vessel. In those circumstances, it was held that the CHA was not liable to penalty. Those are not the facts obtaining in the present case. It is not the case of the appellant that he did not know when the vessel was set to sail. In fact normally, the arrival and departure of the vessel are made known in advance to all parties concerned by the shipping line. It is for the CHA to complete the formalities before the departure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on his part. 5.9 The Hon ble Apex Court in the case of Gujarat Travancore Agency v. CIT, Kerala [AIR 1989 SC 1671 = 1989 (42) E.L.T. 350 (S.C.)] while considering certain provisions of the Income Tax Act, held as follows :- 3. The creation of an offence by Statute proceeds on the assumption that society suffers injury by the act or omission of the defaulter and that a deterrent must be imposed to discourage the repetition of the offence. 4. Unless there is something in the language of the statute indicating the need to establish the element of mens rea it is generally sufficient to prove that a default in complying with the statute has occurred. A similar view was held by the Hon ble Apex Court in the case of SEBI v. Shriram Mutual Fund [2006-TIOL-72-SC-SEBI] in the context of the SEBI Act as follows :- In the provisions and scheme of penalty under Chapter VIA of the SEBI Act, there is no element of any criminal offence or punishment as contemplated under criminal proceedings. Therefore, there is no question of proof of intention or any mens rea by the appellants and it is not essential element for imposing penalty under SEBI Act and the Regulations. 5.10 There is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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