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2016 (9) TMI 975 - CESTAT HYDERABAD

2016 (9) TMI 975 - CESTAT HYDERABAD - TMI - Imposition of penalty - Port Clearance Certificate - Charter Agents - Bagged Rice - extension of port clearance upto 07.02.2012 - surrender of original Port Clearance Certificate on 08.02.2012 - Section 42 of the Customs Act, 1962 - whether the penalty imposed for the reason that the vessel has left the port without Port Clearance Certificate as envisaged in Section 42 of the Act is justified? - Held that: - Section 42 states that no vessel can leave w .....

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Agent was in possession of the Port Clearance Certificate and the Master of the ship had in possession only a photocopy of Port Clearance Certificate. Section 148 of the Act states that the principal/master of the vessel shall be liable for the acts or omissions committed by the agent and vice versa. At the time of sail of the vessel if the appellant who are Steamer Agents of the vessel were holding the Port Clearance Certificate, it cannot be said that there is violation of Section 42 if the ve .....

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- decided in favor of appellant. - C/23564-23565/2014 - Final Order No. A/30702-30703/2016 - Dated:- 1-7-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) Sh. Dinesh Aggarwal, Authorised Representative for the Appellant Sh. Nagraj Naik, Deputy Commissioner (AR) for the Respondent ORDER The above appeals being connected were heard together and are disposed by this common order. Appeal No. C/23564/2014 is filed by Steamer Agents and Appeal No. C/23565/2014 is filed by it's Manager. 2. M/s Chow .....

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tter dated 04.02.2012, they requested for extension of port clearance stating that the subject vessel has not sailed from the port after completion of loading operations due to the dispute between owner and Charters. As requested by appellant the port clearance was amended and extended till midnight of 07.02.2012. On the next day, 08.02.2012, appellant surrendered the Port Clearance and informed vide their letter dt. 08.02.2012 that the dispute between owners and Shippers could not be resolved a .....

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the vessel has already sailed out of Kakinada Port. The department issued Show Cause Notice proposing to impose penalty against appellant, its Manager Sh. T.R. Rao (appellant in Appeal No. 23565/2014), Master of the vessel and others for leaving the port without proper clearance and thus -violating Section 42 of the Customs Act, 1962 ( here after referred to as the Act). The allegation against the appellant is that the appellants did not give the Port Clearance Certificate to the master of the .....

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was given by Customs Department till mid night of 07.02.2012. The vessel had sailed outside the port prior to mid night of 07.02.2012. Though the appellants had surrendered the original of Port Clearance Certificate 08.02.2012, the vessel had already sailed before mid night of 07.02.2012. Till mid night 07.02.2012 there was a valid port clearance issued by the Department and that therefore there was no violation of Section 42 of the Act as alleged. The allegation that the vessel sailed without a .....

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e Learned AR Sh. Nagaraj Naik appearing for the Department contended that the Port Clearance Certificate issued by department was surrendered by the appellant on 08.02.2012. Therefore, it is clear that the vessel has sailed without holding the Port Clearance Certificate. The original port clearance certificate having been surrendered to the department the sail of the vessel from the port is without a Port Clearance Certificate. That the appellants who are Steamer Agents are required and duty bou .....

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person-in-charge of a conveyance which has brought any imported goods or has loaded any export goods at a customs station shall not cause or permit the conveyance to depart from that customs station until a written order to that effect has been given by the proper officer. (2) No such order shall be given until - (a) the person-in-charge of the conveyance has answered the question put to him under section 38; (b) the provisions of section 41 have been complied with; (c) the shipping bills or bi .....

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at no penalty is leviable on him under section 116 or the payment of any penalty that may be levied upon him under that section has been secured by such guarantee or deposit of such amount as the proper officer may direct; (f) in any case where any export goods have been loaded without payment of export duty or in contravention of any provision of this Act or any other law for the time being in force relating to export of goods, - (i) such goods have been unloaded, or (ii) where the [Assistant C .....

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of the vessel while leaving the port though it may be necessary for the vessel to have the original port clearance certificate in case it is intercepted or for that matter for any other inspections. In the instant case undisputedly the department has issued Port Clearance Certificate which was valid till mid night of 07.02.2012. So also department does not have a case that the vessel sailed after mid night of 07.02.2012. Therefore, at the time of sail of the vessel from the port, there was a va .....

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