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TMI Blog2015 (11) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing personal penalties on the appellant as well as M/s Orient Ship Agency Pvt. Ltd. under Section 112(a) of the Customs Act. 2. The facts of the case are that M/s Orient Ship Agency Pvt. Ltd., a shipping line arranges import of goods in containers into India. The containers are exempted from payment of duty under Notification No. 104/94 dated 16.3.1994 subject to conditions laid down in the Notification. One of the conditions is that the importer by execution of a Bond binds themselves to re-export the containers within six months from the date of their importation and to furnish documentary evidence thereof to the satisfaction of the Assistant Commissioner and to pay the duty leviable thereon in the event of the importers failure t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case as under : - 12. However, having upheld the liability to confiscation in the absence of documentary evidence, we feel that that in view of the special circumstances of the case where the liabilities were taken over by one agent from other and in view of the counter allegations between the two agents that the necessary documents were not furnished to them, the secondary evidence submitted by the appellant regarding proof of export of containers outside India cannot be completely discarded. Now that the appellants are able to produce evidence that the container is lying outside India as per the computer data regarding status of container furnished by the appellant, it should be accepted as proof of export subject to verification tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther details are available or presumption has been made that the container might have been discarded or not available then they have to be treated as having not been exported outside India. It is made clear that the duty shall be demandable both from OSK and Orient Shipping, though first attempt should be made to demand from M/s. Mitsui OSK India and on their failure from Orient Shipping as in any case, Orient Shipping in terms of arbitration spelt out by them can recover the same from their principal. Liability to penalty is also upheld on both the appellants for having dealt with the goods which have been held liable for confiscation. However, the quantum of redemption fine and penalty shall be redetermined in the remand proceedings takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Lines (India) Pvt. Ltd., which indicates the location of the container at any given point of time. The documents submitted by him showed the locations in the form of a code for each port location. He was requested to submit a note explaining the code of each port as well as the present logistic location of the containers, from their website. These documents have been produced by him today. 5. The learned A.R. appearing for the Revenue reiterates the findings of the Commissioner. 6. We have considered the submissions made by both the sides. The main point to be decided in this case is whether the documents submitted by the appellant indicating the location of the containers in various ports of the world should be accepted or not as proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undreds of containers would not be expected to manipulate the website records for a few containers for which demand of duty has been raised. We, therefore, accept the evidence provided by the learned Counsel. 6.2 The Commissioner relied on Section 63 of the Indian Evidence Act. We note that the Commissioner just defined Section 63 without further analyzing the provisions of the Evidence Act. According to the definition under Section 63, secondary evidence includes certified copies given under the provisions. But, he does not specify as to who has to certify the copies. Therefore, when the appellant himself certifies these copies, there should be no reason to reject this evidence. It would be rather unfair to expect the appellant to get a c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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