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2019 (5) TMI 723

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..... the appellant being a custodian has contravened the provisions of Regulation 6(f) and 6(q) of HCCAR, 2009 for this offence the penalty is provided under Regulation 12(8) of HCCAR 2009. The appellant though violated the Regulation but it was not intentional, particularly when the levy of IGST came into effect on the same day i.e. 01.07.2017 - quantum of penalty is reduced - appeal allowed in part. - Customs Appeal No. 12467 of 2018-SM - A/10814/2019 - Dated:- 9-5-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) Shri. T. Viswanathan, Advocate for the Appellant Shri. T.K. Sikdar, (AR) for the Respondent ORDER PER: RAMESH NAIR The brief facts of the case are that the appellant M/s Dahej Harbour And Infrastructure Ltd. was appointed as custodian of the .....

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..... rgo in Customs Area Regulation 2009. After issuing the inquiry report to the appellant and personal hearing, the impugned order dated 06.06.2018 was issued whereby a penalty of ₹ 50, 000/- was imposed on the appellant, therefore, the present appeal. 2. Sh. T. vishwanathan, Ld. Counsel appearing on behalf of the appellant submits that the part of the factory of M/s Hindalco Industries Ltd is also notified as a land place/custom area and jetty does not have storage place. Thus it is important to store the imported goods at jetty, thus, once the entry inward by customs is granted, the imported good has to be unloaded at factory of the Hindalco Industries Ltd. through the conveyer belt. He submits that no proceeding was initiated against .....

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..... goods by Hindalco; c) Very rarely and in stay cases, the jetty has been used by M/s Sanjana Cryogenics, who is situated within the factory premises of Hindalco; d) The goods imported are not restricted goods; they are freely importable; e) The self-assessed duty (or provisionally assessed duty) is always paid in advance by Hindalco. Even in this case, the assessed duty has been paid at the time of discharge of Cargo. The differential duty arose in the case due to late arrival of the vessel and due to change in the tax regime; f) The entire operation is under control of customs officers posted specifically for this purpose; g) Both the Appellants and Hindalco pay charges to customs department as per the norms/circulars issued time to time; h .....

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..... duty on the date of import. Thus, in absence of final provisional assessment of bill of entry it can be contended that Hindalco Ltd. had not paid applicable customs duty. He also referred to the Board Circular dated 01.07.2017, according to which it was clarified that in case whether cargo arrival is after 01.07.2017 and an advance bill of entry was filed before 01.07.2017 along with payment of duty is bill of entry may be recalled and reassessed by the proper officer for levy of IGST and GST compensation CESS as applicable. In the present case, the Hindalco has already paid the applicable IGST along with interest. Without prejudice to the above submission he makes further submission that differential duty arises due to introduction of GST .....

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..... of these regulation, or abets such contravention or who fails to comply with any provision of the regulation with which it was his duty to comply, then, he shall be liable to a penalty which may extend to fifty thousand rupees. From the above Regulation 12(8) it is seen that the penalty of 50,000/- is maximum one which was imposed by the adjudicating authority. However considering the overall facts and circumstances of the case, I am of the view that the appellant though violated the Regulation but it was not intentional, particularly when the levy of IGST came into effect on the same day i.e. 01.07.2017. Considering this position, I am of the view that a lenient view has to be taken, hence, I reduce the penalty from ₹ 50,000/- to  .....

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