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TMI Blog1994 (1) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... on 113(d) of the Customs Act and also levied on them penalty of Rs. 25,000/- under Section 114(1) of the Customs Act. 2. The brief facts of the case are that the authorities on scrutiny of the shipping bill filed by the appellant for export of granite found that an application filed along with the Shipping Bill for overtime showed forged signatures of the Asstt. Collector (Exports) and also of an Examiner therein. Further enquiries revealed that goods covered by the said shipping bill which had been stuffed in the container bearing No. MOLU 241353-9, in the appellant s premises in the presence of the Central Excise Officers had been shipped by the vessel M.V. Ilovik without complying with the Customs formalities as required under the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not come forward to inform the Customs authorities of what had transpired until much later. The learned Counsel for the appellant submitted that the appellant has not committed any violation of the Customs Act warranting confiscation of the goods under Section 113(d) of the Act as held by the lower authority. He pleaded that the learned lower authority has wrongly invoked the violation of Section 40 of the Act against the appellant. The said Section, he pleaded, dealt with the obligation of the person-in-charge of conveyance not to load the goods unless the shipping bill duly passed by the proper officer had been handed over to him. He pleaded so far as the appellant is concerned they had no role to perform so far as Section 40 was con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promises to the clearing agents that he will produce the shipping bill after complying with the necessary formalities under the Customs Act and at his insistence, without the concerned shipping bill in hand, the clearing agent s representative asked the representative of the steamer agent to take the container in question on board for export. He pleaded, even after the appellant came to know about the shipment without compliance with the Customs formalities, as required under the law, they kept quiet and only at a later date came forward to explain their position regarding the shipment. By that time, he pleaded, the authorities were already seized of the matter and were taking steps to get the container back and had instituted necessary en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent, it is seen, has also been penalised in the proceedings before us and invoking of this Section in the order of the learned lower authority is quite relevant so far as the agent of the vessel is concerned. So far as the appellant is concerned invoking of Section 40 is certainly misplaced in law, but that is not to say that no case for confiscation of the goods or penalising the appellant has been made out otherwise. We observe that the appellants had waived the issue of show cause notice and were made aware of the charges made against them. The fact remains that the appellants representative arranged to have the container containing the goods for export placed on board the vessel by holding out false promise that Customs formalities wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not relate to an exporter, but to the person-in-charge of the conveyance, the order for that reason is vitiated and no action could be taken against the appellants. It is settled law that quoting of a wrong section is not fatal to an order so long as the violation for which the goods are confiscated can be read in the narration of the facts of the case and the findings of the adjudicating authority. In the present case, there is a clear finding that the goods had been shipped with the connivance of the appellants representative, Shri Natarajan, who mala fidely had even forged signatures of the Examiner and an Asstt. Collector to show as if the goods had been examined by the Customs authorities without the Let Export Order for shipment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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