2019 (8) TMI 274 - AT - Customs

CFS Operator - Unloading and loading of goods at approved places only - it was alleged that the appellant did not bring the container within 6 hours as required under the Public Notice No. 70 of 2016 and also did not report to the Assistant Commissioner of CFS whereby the safety of the container was threatened - HELD THAT - The enquiry report does not discuss any evidence on which the finding in the Report is based. The Hon ble Supreme Court in the case of SHER BAHADUR VERSUS UNION OF INDIA ORS. 2002 (8) TMI 842 - SUPREME COURT held that mere noting in the report would not in principal satisfy the rule of sufficiency of evidence. There is no finding that there was a breach of provision of Section 33 of the Act. Already the appellant has suffered the punishment in the order for more than 40 days. It stands idle with huge infrastructure - also the Adjudicating Authority never disputed the fact that the appellant informed the Competent Authority from time to time about the breakdown of the trailer and the movement of the container. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Allegation of failure to bring container within prescribed time limit and report breakdown incident.
2. Charges of not obtaining requisite permission for shifting container.
3. Prohibition order issued by Commissioner based on alleged non-compliance.

Analysis:
1. The appellant, a Container Freight Station Operator, faced allegations of not bringing a container within the stipulated time frame and failing to report a breakdown incident. The appellant argued that due to the breakdown, meeting the time limit was impossible. The appellant maintained continuous communication with the Assistant Commissioner and operated under proper security measures. The enquiry confirmed the safety of the container but noted lack of official written communication about the breakdown incident, leading to the issuance of a Show Cause Notice.

2. The appellant refuted charges of shifting the container without permission, highlighting that the shifting was necessitated by the breakdown and was conducted with proper authorization in the presence of Customs officers. The appellant's compliance with Section 33 of the Customs Act was emphasized, as the shifting occurred due to unforeseen circumstances and was duly recorded orally. The adjudication found no evidence of non-compliance with Section 33 and acknowledged the oral reporting conducted during the incident.

3. The Commissioner's non-speaking order imposing a 180-day prohibition on the appellant was contested for lacking factual findings and exceeding the penalty's relevance to the case. The appellant argued that the penalty was disproportionate and unrelated to the charges specified in the Show Cause Notice. The appellant cited legal precedent to challenge the order's validity, emphasizing the absence of sufficient evidence and factual findings supporting the prohibition. The Tribunal, after reviewing the submissions and events chronology, set aside the impugned order, noting the appellant's consistent communication with the Competent Authority regarding the breakdown incident and container movement.