TMI Blog2019 (8) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... nd from penal action in consequences thereof under Section 111 and 112 of the said Act? - HELD THAT:- Importing non dutiable goods does not give an importer a licence to violate or flout laws under the Customs Act or grant automatic exemption from complying statutory obligation under Section 34 35 or any other provisions of the Customs Act, 1962 and penal consequence in violation thereof. The action of condonation by the tribunal of the aforesaid violations by the importer by holding that it was procedural violation and secondly that imported goods in question were not chargeable to Duty and hence no contravention of Section 111 (h) of the said Act is not sustainable in law since the language of Section 34 of the Act is Imported goods shall not be loaded.. and in Section 35 of the Act is No imported goods shall be.. The legislator has not used the expression specifically Dutiable goods or Duty exempted goods . The view of the Tribunal that if no Duty is chargeable or exempted from Duty confiscation and penalty would not be justified is wholly incorrect and not legally sustainable in view of the facts and circumstances involve in this case. There was clear viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Preventive Officer and under the Boat Note the said goods would be escorted to its destination by Preventive Officer. However, in the instant case none of the said procedures was observed and names of the barges namely M.V. Jyestharaj (IMO 9664598) and M.V. Pashyanti (IMO- 9664653) in which the goods namely 4460 MT Canadian Whole Yellow Peas were loaded, were not included in the said over-side discharge guarantee filed by the appellant M/s. Agritrade India Services Pvt. Ltd. The Adjudicating authority held that the impugned imported 4460 M.T. of Canadian Whole Yellow Peas falling under CTH 07131000 were dutiable goods and, as such, were liable to confiscation under Section 111 (h) of the Customs Act, 1962. It did not accept the importer s plea of bad weather, coincided with poor communication, which compelled them to replace the barges that were not included in the over-side discharge guarantee. It was further held that this act of omission on their part has rendered themselves liable for penal action under Section 112 (a) of the Customs Act, 1962. There is a finding of the Adjudicating authority that the goods namely 4460 MT Canadian Whole Yellow Peas were l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants has relied upon the following decisions in support of its contention that exemption or NIL duty of goods does not cease to be a Dutiable goods and NIL rate of Duty is also a Duty : ( i) Collector of C. Ex., Hyderabad -vs- Vazir Sultan Toabacco Co. Ltd. - 1996 (83) E.L.T. 3 (SC) ( ii) Hindi Rubber Factory -vs- Union of India - 1990 (48) E.L.T 363 (P H) ( iii) Karnataka Cement Pipe Factory Industrial Estate -vs- Superintendent of Central Excise Anr. - 1986 (23) E.L.T 313 (Kar.) Learned counsel appearing for the respondent opposing the appeals of the revenue and supporting the order of the Tribunal has contended that exempted goods not chargeable to Duty are not Dutiable goods and does not come within the definition of Dutiable goods under Section 2 (14) of the Customs Act and confiscation and penalty under Section 111 and 112 of the said Act in this case was not justifiable since the goods were neither dutiable nor prohibited and further contended that when the adjudicator has dropped the proceeding in this case against CHA, M/s. Ravi Shipping Agency Pvt. Ltd. penalty lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has not been paid; ( 15) duty means a duty of customs leviable under this Act; 34 .. Imported goods shall not be unloaded from, and export goods shall not be loaded on, any conveyance except under the supervision of the proper officer; Provided that the Board may, by notification in the Official Gazette, give general permission and the proper officer may in any particular case give special permission, for any goods or class of goods to be unloaded or loaded without the supervision of the proper officer. 35 No imported goods shall be water-borne for being landed from any vessel, and no export goods which are not accompanied by a shipping bill, shall be water-borne for being shipped, unless the goods are accompanied by a boat-note in the prescribed form: Provided that the Board may, by notification in the Official Gazette, give general permission, and the proper officer may in any particular case give special permission, for any goods or any class of goods to be water-borne without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the second issue relating to violation of Section 34 35 of the Customs Act, 1962 and penal consequence thereof, one very important aspect of admitted factual position which requires consideration is that the Tribunal itself in its order has recorded that there was violation of the provisions of Customs Act in this case as follows: the barges other than the one whose names were included in the guarantee declaration, were used. Though the said activity of the appellant, is in violation of the procedural condition envisaged in the Customs Act, 1962, but keeping in view, that no duty liability was involved and appreciating the reasons given by the assessee, I find that the confiscation of the other imported goods or the barges and the imposition of penalty upon the appellants, would not be justified. In my considered view, importing non dutiable goods does not give an importer a licence to violate or flout laws under the Customs Act or grant automatic exemption from complying statutory obligation under Section 34 35 or any other provisions of the Customs Act, 1962 and penal consequence in violation thereof. In m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge points to any violation of the law it should narrate the facts from which this violation can be inferred. Furthermore, the law violated must be stated. The charge read as a whole should not leave any doubt in the mind of an ordinary reasonable person engaged in or having knowledge of the activities or offences which are the subject matter of the charge, about the nature and scope thereof. When the alleged violation of the law has been sufficiently identified while narrating the facts and tabulating the charge, misquotation of a particular subsection, by inadvertence, in the show cause or in the adjudication order does not vitiate the charge or change the nature of the proceedings. In this case the adjudication order clearly mentioned the allegations against the respondent that they were in breach of s.34 and s.35 of the Customs Act, 1962 by transferring the goods from the carrier vessel to a barge without observing the required formalities. The respondents were charged under these sections read with Section 111(h) thereof. Instead of quoting the appropriate subsection of Section 111 which was Section 111(a) or (d) or both Section 111(h) was quoted. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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