2015 (1) TMI 668 - AT - Customs

Penalty u/s 117 - appellant s shipping agent s denial or refusal to move the containers to the CFS of the importer s choice - contravention of the Facility Notice dated 5-2-2011 - Cancellation of registration of the appellant - After perusing of copy of the Facility Notice No. 69/2011, I find that it nowhere refers to the Section 141(2) of the Customs Act. Further, in the facts and circumstances, I find that the show cause notice is vague, as the gist of allegation and period is not found mentioned. The whole proceedings vitiated for lack of proper show cause notice. Thus, I hold that the notice is vague and I set aside the impugned order as well as the Order-in- Original imposing the penalty on the appellant. - Decided in favour of appellant.

Summary

Issues:
Penalty imposition under Section 117 of the Customs Act, 1962 for contravention of Facility Notice No. 69/2011.

Analysis:
The appellant, a shipping agent, filed an appeal against the Commissioner of Customs (Appeals) order imposing a penalty of Rs. 1 lakh under Section 117 of the Customs Act, 1962, which was partially allowed, reducing the penalty to Rs. 50,000. The appellant's duty involved filing IGM on behalf of the shipping line and assisting in moving containers to designated CFS. The dispute arose when a complaint was made that the appellant refused to move containers to the importer's chosen CFS. The show cause notice alleged contravention of Facility Notice No. 69/2011, and the penalty was imposed based on this violation.

The appellant argued that they had contractual obligations to return containers to the shipping line within six months and charged an amount per container for monitoring containers going to different CFS. They contended that the show cause notice was vague as the complaint letter's gist was not provided despite requests. The appellant also challenged the imposition of the penalty under Section 117, stating that no contravention of the Customs Act had occurred.

The Revenue, represented by the AR, supported the penalty imposition, citing the Facility Notice issued under Section 141(2) of the Customs Act, which outlined container movement procedures to CFS for cargo facilitation.

The Tribunal, after reviewing the Facility Notice No. 69/2011, found discrepancies as it did not reference Section 141(2) of the Customs Act. Additionally, the show cause notice was deemed vague, lacking essential details of the allegation and period. Consequently, the Tribunal held the notice as defective, setting aside the impugned order and the Order-in-Original imposing the penalty. The appeal was allowed in favor of the appellant, providing consequential relief if applicable.