TMI Blog2009 (2) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... dian. In fact, the letter dated 8-6-07 from the CHA states that on 15-1-07, when the CHA went to hand over out of charge Shipping bill to the Shipping Co., at that the time they came to know that the vessel has already sailed. - confiscation of the goods already exported, which are not available for confiscation and imposing redemption fine on the exporter is not correct - C/132 and 166/2008 - A/85-86/2009-WZB/C-IV/SMB - Dated:- 25-2-2009 - Shri A.K. Srivastava, Member (T) S/Shri V.M. Doiphode and N.D. George, Advocates, for the Appellant. Shri Kishori Lal, SDR, for the Respondent. [Order].- These appeals have been filed by M/s. Mohini Organics Pvt. Ltd., Mumbai (hereinafter referred to as exporter) and M/s. B.N. Thakkar and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pping bill and Customs Invoice to the Customs for obtaining the let export Order. However, on 13-1-07, being 2nd Saturday 14-1-07, being Sunday, the Let Export Order was issued only on 15-1-07. When representative of the CHA went to the Shipping line to hand over the out of charge Shipping bill, he came to know that the vessel had already sailed with the four containers on 14-1-2007 without obtaining the out of charge. The CHA immediately notified this fact to the Customs and thereafter the exporter on 22-5-2007 informed the Commissioner of Customs and the CHA sent another letter dated 8-06-07 informing the factual position. 5. The Commissioner has held that the exporter/CHA have failed to perform their duties properly as they did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the containers cannot be loaded without the let export order. 7. I find that the exporter/CHA had complied with the provisions of Section 50(1) of the Customs Act, 1962 by presenting the Shipping Bill to the proper officer in respect of the said goods. Section 35 of the Customs Act does not cast any liability on the exporter/CHA. Section 34 of Customs Act, 1962 lays down that export goods shall not be loaded on any conveyance except under the supervision of the proper officer of Customs. Thus it is for the Customs to ensure at the time of supervision of loading of the containers on board a vessel that the exported goods are accompanied by a shipping bill. Section 36 provides that no export goods shall be loaded on any conveyance on any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Officers, and the Custom Cargo was accepted by the foreign buyers and the proceeds have been realized. 11. There was no omission or commission on the part of the exporter/CHA rendering the subject goods liable to confiscation and only observation by Commissioner in para 19 of the impugned order is that they did not inform the Shipping line to stop the containers from being loaded without the supervision and approval of the officer of the Customs, when the fact is that they had no knowledge that the containers were loaded by the Shipping Line, without the supervision or without the let export order from the proper Officer of Customs. 12. There is no evidence of any incriminating conduct against the exporter/CHA. There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been accepted by the affected parties and the same is under challenge before the Hon'ble Bombay High Court. I find that if the decision is under challenge, its correctness is in jeopardy and it does not have precedent value, as has been held by the Tribunal in the case of Commissioner of Central Excise, Chennai-II v. BOC India Ltd. reported in 2007 (212) E.L.T. 222 (Tri.-Chennai). For holding so, the Tribunal has relied upon the Hon'ble Supreme Court judgment in the case of UOI v. West Coast Paper Mills Ltd. reported in 2004 (164) E.L.T. 375 (S.C.). Therefore, placing reliance on the Tribunal's decision dated 29-11-2007 in the case of M/s. LMJ International Ltd. and Others (supra) will not be in order as it has not yet attai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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