TMI Blog2017 (4) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant have claimed that the goods belong to them and therefore they have come forward to get the provisional release of the same. Thus, the appellants are clearly importers in terms of the definition appearing in the Customs Act. The SCN also alleges that the goods cleared at Mumbai were not the same is the goods which were seized by the customs. The impugned order fails to deal with the issue and to categorical state if the goods were later on imported into India or not. The impugned order is silent on that aspect. In view of above, the demand of duty is set-aside and the matter is remanded for decision on facts regarding the re-import of goods and the duty liability of the appellant. Penalty - Held that: - The SCN does not even al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said goods were liable for confiscation under Section 111 (f) of Customs Act, 1962, the same were placed under seizure vide panchnama dated 13.02.2007. In the statement, the master of the vessel interalia stated that the said goods were loaded from Jabel Ali for discharge at Mumbai, but, following a verbal communication from the Charterers of the vessel, the vessel was brought to Kandla instead of Mumbai to undertake a fresh voyage from Kandla to Sultan Qabos (Oman) alongwith the said goods. He further informed that he filed same bottom cargo declaration as NIL in consultation with the representative of the Shipping Agent Shri Jaikumar Ramdasani. Shri Jaikumar Ramdasani representative of the Shipping Agent stated that he was appointed as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for ₹ 1.70 crores and bank guarantee for ₹ 45 lakhs and an undertaking by the said M/s. Cargosol to land and clear the said goods on payment of appropriate import duty at Mumbai. Accordingly, the vessel was granted port clearance on 06.04.2007 for its voyage to Muscat to Mumbai. However, the vessel was diverted to Jabel Ali. Subsequetly, M/s. Cargosol submitted that the said goods were subsequently discharged by different vessel in Mumbai where they were cleared from customs. However, used Fuan Trunk Crane was discharged at Dubai and not brought to Mumbai. On comparison of the weight and value goods claimed to have been discharged at Mumbai, by M/s. Cargosol, with the weight and value of the goods which were seized at Kandla, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Karachi. He argued that there was no intention to smuggle goods or violate any Rules or Section. He argued that they have applied for amendment of IGM and same is allowed by the Customs Authority of Kandla. He further argued that the goods were not imported into India in so far as the goods remain on the vessel. Moreover, the appellants are not the importers of the goods and therefore the duty cannot be recovered under Section 28 of Customs Act, 1962 form the appellants. It was argued that the appellants are not the owners of the seized goods. He relied on the definition of importer appearing in section 2 (26) of the Customs Act, 1962. He relied on the decision of Hon ble Bombay High Court in the case of Commissioner of Customs vs. Jup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have gone through the rival submission, we find that the appellants were the charterers and shipping agents of the vessel. When the cargo was seized the appellants came forward for provisional release of the said cargo. Section 2 (26) of the Customs Act defines 'importer' as follows:- (26) importer , in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer; It is the apparent that by the action of coming forward and taking responsibility of the impugned goods and seeking provisional release of the said goods, the appellant have stepped into the shows of the importer. The bond execute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be assessed by the competent authority in respect of the goods. And we declare that this bond is given under the orders of the Customs/Govt. for the performance of an act in which the public is interested. They had admitted in the bond that the goods belong to the 'obligators'. It is apparent that from the language of the said the appellant have claimed that the goods belong to them and therefore they have come forward to get the provisional release of the same. Thus, the appellants are clearly importers in terms of the definition appearing in the Customs Act. It is seen that the decision of Hon ble Bombay High Court in the case of Jupiter Exports, is not relevant to the instant case. The facts in the said case are total ..... X X X X Extracts X X X X X X X X Extracts X X X X
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