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M/s. Agritrade India Services Pvt. Ltd., Ravi Shipping Agency Pvt. Ltd. And Sohom Shipping Pvt. Ltd. Versus Commissioner of Customs (Prev.) , W.B.

2015 (12) TMI 1042 - CESTAT KOLKATA

Confiscation of import of whole yellow Peas - dutiable or prohibited goods unloaded or attempted to be unloaded l into the two substituted barges - Penalty u/s 112 - Imposition of redemption fine - Held that:- It is observed from the case records and the record of the personal hearing held before the Adjudicating authority that all the three representatives appearing for the present appellants pleaded guilty during adjudication proceedings and requested leniency. This factual aspects have also b .....

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de the case afresh after taking on record the submissions made by the appellants on merits in these proceedings. Accordingly Order-in-Original dated 08.07.2014 passed by the Adjudicating authority is set aside and case is remanded back to him to decide the same in denovo proceedings - Matter remanded back - Decided in favour of assessee. - Appeal Nos. CA-76245, 76274, 76341/14 - ORDER NO.FO/A/75731-75733/2015 - Dated:- 29-10-2015 - Dr. D.M. Misra, Member(Judicial) And Shri H.K.Thakur, Member(Tec .....

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s, imported by M/s.Agritrade India Services Pvt.Ltd., under Section 111(h) and 111(o) and allowed the same to be redeemed by making a payment of ₹ 2.5 Crores as redemption fine under Section 125 of the Customs Act, 1962. Both the barges M.V. Jyeshtharaj (IMO-9664598) & M.V. Pashyanti (IMO-9664653) were also confiscated under Section 115 of the Customs Act, 1962 and allowed redemption fine on payment of ₹ 1.4 Crores as redemption fine. Penalties of ₹ 1.00 Crore, ₹ 50.0 .....

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. argued that appellant imported 10,000 MT of Canadian Whole Yellow Peas through vessel MV Dubai Crown to Kolkata Port. The commodity was fully exempt vide Notification No.12/2012-Cus dated 17.03.2012. The importer filed Bill of Entry No.5519361 dated 17.05.2014 and also filed Overside Discharge Guarantee (ODG) bearing number 56(OS) on 16.05.2014. The ODG contained the names of six barges, namely, Sohom-I, Sohom-II, SohomIII, Srijoy-I, Joy Basudeb and JITF Shambhavi. The ODG was accepted/approve .....

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the vessel for timely shifting of cargo as the draft of the river was falling during that period (fortnight) and to avoid demurrage and other costs. Accordingly, two barges, namely, MV Jyaestharaj and MV Pashyanti, who were available nearby at that point of time, were engaged by the stevedore as substitute of the said unavailable listed barges for loading of cargo and both such barges are licensed inland barges of Indian Flag duly registered and authorized to operate for the said purpose. Such .....

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n 19th May, 2014 the CHA and the stevedore went to Customs House for regularizing the issue, like listing of the said two barges. By 12.00 hrs on 19th May 2014, the application for inclusion of the said two barges viz. MV Jyaestharaj and MV Pashyanti in the overside Discharge Guarantee was submitted and the Assistant Commissioner (Prev.) duly endorsed the same for enlistment. The concerned file of the Custom House would reveal this fact. 2.5 That these two barges carrying about 4460 MT of the sa .....

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le Yellow Peas u/s 111(h) & 111(o) and the two barges u/s 115 with option to redeem them on payment of fine of ₹ 2.5 Crores and ₹ 1.4 Crores respectively and also imposed penalty of ₹ 1 Crores u/s 112(a) ibid on the Appellant. The Appellant then got release of the said cargo upon furnishing of a Bank Guarantee of ₹ 3.5 Crores vide Order dated 13.08.2014 fo Hon ble Calcutta High Court in WP No.658 of 2014. 2.7 That in the backdrop of the above facts, it is humbly submi .....

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or are they the goods on which duty has not been paid in terms of the second part of the definition, simply because not duty is required to be paid on them. Therefore, they are not dutiable goods . This interpretation finds support from the judgement of the Hon ble Supreme Corut in the case of cce V. Dhiren Chemical Industries [2002 (139) ELT 3(SC)], wherein it has been held that where the raw material is not liable to excise duty or such duty is nil, no excise duty is, as the matter of fact, pa .....

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rohibited, cannot violate the provisions of Section 111(h) of the Customs Act, 1962. 2.8 That likewise, provisions of Section 111(o) of the Customs Act, 1962 are attracted if there is exemption subject to any condition, which is not fulfilled or violated. In this case, the imported goods i.e. Canadian Whole Yellow Peas are unconditionally exempt vide Sl.No.21 of NF. 12/2012-Cus dated 17.03.2012 and, therefore, there is no room/scope for any non-fulfillment or violation of any condition of import .....

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h and unreasonable. 2.10 That provisions of law on the basis of which the adjudication order has been passed, having been found inapplicable to the facts of the present case, the adjudication order itself becomes baseless, unsustainable in law and deserves to be set aside. 2.11 That at best, there may be certain non-compliance with some purely procedural formalities, non-observance of which neither has any threat to the revenue as the impugned goods were fully exempt unconditionally, nor to any .....

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nd imposition of penalty are totally uncalled for, unjustified, arbitrary, ultra vires and totally unsustainable. 2.12 That the above submissions find support from the judgement of Hon ble Supreme Court in the case of Sambhaiji vs. Gangabai [2009 (240) ELT 161(SC)], which held that : (a) Procedural law should not ordinarily be construed as mandatory. (b) Procedural law is always subservient to and is in aid to justice. (c) All Rules of procedures are handmaid of justice. No party should ordinari .....

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as his case that CHA has only acted as per the documents furnished by the importer and no penalty under Section 112(a) of the Customs Act, 1962 is attracted. 4. Shri S.Sharma, Commissioner(AR) appearing on behalf of the Revenue argued that all the submissions regarding dutiable and prohibited goods mentioned in Section 111(h) of the Customs Act, 1962 and justification given by the appellant, regarding not taking of permission, were not subject matter of the Adjudication before the adjudicating a .....

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