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2015 (5) TMI 1015 - CESTAT BANGALORE

2015 (5) TMI 1015 - CESTAT BANGALORE - 2015 (329) E.L.T. 553 (Tri. - Bang.) - Imposition of penalty - Under Section 116 & 117 of the Customs Act, 1962 - Short landing of goods and non amendment to IGM - Held that:- there was no need to initiate action when we refer to Apprising Manual and also the scheme of action to be taken on the basis of OTR. Since the duty has been paid on the entire quantity, there is no need to initiate action against the steamer agent for short-landing at all. Therefore, .....

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y have entered after discharging the liability of import duty and penalty under Section 116 ibid not to be imposed. - Decided in favour of appellant with consequential relief - C/21095/2014-SM - Final Order No. 21169/2015 - Dated:- 22-5-2015 - Shri B.S.V. Murthy, Member (T) Shri S.C. Choudhary, Consultant, for the Appellant. Shri Mohd. Yusuf, (AR), for the Respondent. ORDER Appellant is a steamer agent and filed Import General Manifest (IGM) In respect of Vessel M.V. Dong Yong, for discharge of .....

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lant was not able to explain the lost to his satisfaction and proceeded to impose penalty under Section 116 of the Customs Act, 1962, amounting to ₹ 12,60,724/-. The appeal filed by the appellant was rejected by the Commissioner (Appeals) and this order is under challenge before the Tribunal. 3. Even though stay application has been listed, in view of the fact that 25% penalty has been deposited as per direction of the Commissioner (Appeals) and in view of hearing of the appeal today .....

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hip fell into sea and Out Turn Report confirmed that this was happened because of breaking of the railings and lashing wire by which the logs were tied. There was a report of Master of Vessel also. He reported the accident as soon as the vessel reached at the Port to all concerned including the Customs authority. In view of the fact that short-landing happened because of natural calamity, no penalty could have been levied. He also submits that the importer had paid the entire duty on the quantit .....

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ircumstances would have been examined by the concerned authority and the amendment to IGM would have been permitted and there would not have any further proceedings against the appellant. It cannot be said that the steamer agent was not aware of such procedure since this is the main responsibility of the steamer agent. 6. I have considered the submissions made by both the sides. Apparently, even though 159 pieces of timber logs were lost because of accident, the appellant did not take steps .....

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reasons for short-landing. The only ground for such a conclusion is that IGM amendment was not requested for. The report of Master of Vessel and other evidence on claim of loss of timber logs have not been considered nor discussed. 7. Learned consultant relies upon the Apprising Manual of the Customs Department and relevant provisions of Manual in the chapter relating to MCD are reproduced for better appreciation : 7.09 Claim for duty on goods falling overboard during discharge : 1.&em .....

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d or restricted items etc., the circumstances leading to the short landing, the explanation furnished by the steamer agents particularly in respect of precautions, the steamer agents have taken to avoid short-landing all these factors should be taken into account. ….                 ….            …. (ii) The failure to account .....

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of duty involved. However, where duty has already been paid and refund thereof is time-barred it is within the discretion of the adjudicating officer to impose a lower or nil penalty. In practice, where there is no evidence of mala fide, the penalty can be waived. What emerges from the relevant portion of the Manual extracted above is that under Section 116 of the Customs Act, duty is demanded only if there is a possibility of goods passing irregularly into the country. The Apprising Manual also .....

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quantity and therefore, apparently the steamer agent presumed that the matter ended there. The purpose of submission of OTR is to ensure that quantity shown in the IGM is properly accounted for and duty is discharged on every item which is covered in the IGM. The action for short-landing is taken or has to be taken only when duty has not been paid on the short-landed quantity. It has to be taken note of the fact that in case of short-landing because of the failure on the part of custodian, the c .....

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