TMI Blog2015 (3) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CFS was constructed including the area of Survey No. 117. The legal owner of Survey No. 117 is Shri.Ramesh Gharat and they have a lease agreement with him for 15 years. The reply to this allegation in the show cause notice reveals that all the directions have been complied with and the total area together with the boundaries has been indicated in the reply to the show cause notice. Thus, the land Survey No. 117 was, according to the Appellants, already used by them as open warehouse for storing various goods and which was enclosed by 10 feet wall. It was incumbent upon the Tribunal to find out whether the allegations in the show cause notice and particularly of violation of Regulation 6(n) and Regulation 9 could be held to be established and proved. Regulation 6(n) sets out the responsibility of Customs Cargo Service Provider not to make any alteration in the entry or exit points or boundary wall without the permission of the Commissioner of Customs. Regulation 9 provides for an application for approval of Customs Cargo Service Provider and the details in which it has to be made. - If the show cause notice alleges violation and breach of these Regulations and section 8(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eva with an area of 3.661 hectares. The survey numbers and area in hectares were mentioned in the application/proposal. That proposal was placed before the InterMinisterial Committee of the Ministry of Commerce, in which officials from the Ministry of Finance, Ministry of Railways and Ministry of Shipping are members. The policy was to reduce the congestion and speed clearance of imported goods and export goods. The private sector was called upon to participate in setting up Inland Container Depots (ICD) and Container Freight Stations (CFS). The proposals of the Appellants for setting CFS were approved and a letter of intent dated 5th May, 2008 came to be issued, copy of which is at Annexture 'B' to the Appeal paper book. 5) Thereafter, an application was made on 4th November, 2008 to the Commissioner of Customs, Nhava Sheva for notifying the entire area of 3.661 hectares situated at Ashte Village, Taluka Panvel as a CFS under section 8 of the Customs Act, 1962. A breakup of survey numbers and hectares was given. The ground plan was also submitted and with the areas being demarcated therein and in possession of the Appellants. The Commissioner was requested to notify the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce the copy of application for registration. Moreover, in the Registration certificate survey no.117 was not entertained, therefore although the appellant may have applied for Survey no. 117 but without they have been granted to operate from works from Survey no. 117, the appellant is not entitled to operate from Survey no. 117. In these circumstances, I do not find any infirmity with the impugned order. Further, penalty on the appellant are highly excessive, therefore, the same is reduced to 50% in the case of M/s. Ashte Logistics P. Ltd. The contention of the appellant that penalty under Section 158 is not imposable. I do not agree with this contention. Therefore, I hold that penalty under Section 158 is rightly imposable. 7) Mr. Sridharan learned Senior Counsel appearing for the Appellants submits that the Tribunal has failed to apply its mind, firstly to the crucial issue and as to whether the Act and the Regulations empower imposition of penalties. The Act only enables vide section 158(1) framing of a Regulation, which may contain a stipulation with regard to imposition of penalty for contravening or aiding a contravention of the Rules or Regulations. There is no specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbers mentioned in the Notification. The Directors further informed that the initial wall of the CFS was constructed including the area of Survey No. 117. The legal owner of Survey No. 117 is Shri.Ramesh Gharat and they have a lease agreement with him for 15 years. The reply to this allegation in the show cause notice reveals that all the directions have been complied with and the total area together with the boundaries has been indicated in the reply to the show cause notice. Thus, the land Survey No. 117 was, according to the Appellants, already used by them as open warehouse for storing various goods and which was enclosed by 10 feet wall. The land 1 acre was owned by one Ramesh Gharat, who has given the said land to the Appellants on 15 years' lease. This land together with the rest of the land, about which there is no dispute, was enclosed by 10 feet wall and as such was presented for inspection and notification by the Customs. The only mistake or error and unintentional, if any, is not including in the application the Survey No. 117. Now, in the light of such a reply, it was incumbent upon the Tribunal to find out whether the allegations in the show cause notice and part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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