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TMI Blog2001 (11) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... om bonded warehouse at Paradeep to M.T. Jagpraja for transfer to the bonded warehouse at Budge Budge. Earlier on 18-10-95, M/s. IOC Ltd. had filed two shipping Bills Duty free goods Ex-bond alongwith a Bond for transfer of the goods under Section 67 in respect of 8,000 M.T. of HSD which was imported in M.T. Albert- Ekka and 3250.863 M.T. which was imported in M.T. Ascot and were assessed provisionally under warehousing Bills of Entry dated 17-10-1995 and 13-9-1995 respectively. These goods were supposed to have been loaded in M.T. Jag Praja at Paradeep Port. On 19-10-95 M/s. I.O.C. Ltd. submitted two applications to the Customs Department for permission to remove the goods from Paradeep Warehouse to Budge Budge Warehouse in respect of these quantities of HSD. The Bonds as well as Shipping Bills so filed were received by the Superintendent of Customs on 21-10-95 and processed by him on the same date and sent to the Assistant Commissioner of Customs, Cuttack for counter-signatures. 2. At this stage the programme of loading of 8,000 M.T. and 3250.868 M.T. of H.S.D. on the Vessel was modified and it was decided to load only 3234.578 M.T.. This quantity was covered by the Shipping B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Atlantic Shipping Pvt. Ltd., (iii) M/s. International Shipping Clearing Agency, (iv) Shri B.D. Majhi, Deputy Manager, IOC, (v) Shri F. Kispotta, Deputy Manager, IOC, (vi) Shri B. Srinivas, Agent, M/s. Jagpraja Atlantic Shipping Agency, (vii) Shri J.C. Rajgopalan, Manager, M/s. International Shipping Clearing Agency, (viii) Capt. A.E. Lala, Master of M.T. Jagpraja, (ix) Shri D. Misra, Traffic Manager, Paradeep Port Trust. (x) Shri R.N. Murmu, Deputy Traffic Manager, Paradeep Port Trust and (xi) Capt. Premananda Rout, Pilot, Paradeep Port Trust. 8. In this notice, it was alleged that M/s. IOC without completing the formalities had moved the vessel out of the port limit on 23-10-95 with active connivance of all the persons including concerned officials of Paradeep Port Trust. It is stated that 3234.570 M.T. of HSD had been loaded on to the vessel without customs clearance. It is alleged that all the above organisations/persons were responsible for evading customs duty and offences under Sections 34, 36, 39, 40, 42, 50, 67 and 71. Therefore, they have been called upon to show cause as to why a penalty should not be imposed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Atlantic Shipping (Pvt.) Ltd. under Sections 112 and 114. (v) A penalty of Rs. 10,000/- is imposed on Shri M. Sreenivas, Manager of M/s. Atlantic Shipping Pvt. Ltd. under Section 114. (vi) A penalty of Rs. 1,00,000/- is imposed on Captain A.E. Lala under Sections 112 and 114. (vii) A penalty of Rs. 10,000/- is imposed on Shri D. Mishra,Traffic Manager, Paradeep Port Trust under Sections 112, 114 and 117. (viii) A penalty of Rs. 5,000/- is imposed on Shri R.N. Murmu, DTM of Paradeep Port Trust under Sections 112, 114 and 117. (ix) A penalty of Rs. 5,000/- is imposed on Pilot Premanand Rout under Sections 112, 114 and 117. (x) A penalty of Rs. 20,000/- is imposed on Shri B.D. Majhi, Deputy Manager (MO) of M/s. IOC under Sections 112 and 114, and (xi) A penalty of Rs. 10,000/- is imposed on Shri F. Kispotta, Deputy Manager (Terminal) of M/s. IOC under Section 112. 10. All the above parties are in appeal against the order passed by the Commissioner. We have heard the learned Counsels for the appellants as per the particulars given below :- (i) Shri Bhasker Sen, Sr. Adv. and Shri P.K. Das, Advocate for M/s. IOC Ltd., (ii) Shri D.S. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Commissioner has ordered for confiscation of the goods and the vessel with heavy penalties on the IOC and the shipping agents. He also imposed penalties on Port Trust officers dealing with the movement of the vessel and also on the Master of the vessel. In our view, in the face of the given facts and the provisions of law, such drastic action is wholly unwarranted. That vessel had moved from jetty to the outer anchorage within the port area for the reason of a long queue of the waiting vessels is not only vouched by the Port Trust documents but is also confirmed in the statements of various port officials. It is even part of the show cause notice dated 30-10-95 in which it is stated, The following day the vessel was shifted to roads and is still on the anchorage . The main thrust of the charge against all the noticee-parties is that the vessel was loaded without getting the assessed copies of the shipping bills. But it is not in dispute that the shipping bills and the Bond in respect of the loaded goods were already filed even prior to the arrival and berthing of the vessel at Paradeep port on 22-10-95. Moreover, the goods were duly accounted for in the bond at Paradee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed there and cleared on payment of appropriate duty. In view of these facts where there is no mala fide intention, the technical infraction, if any, of the statutory provisions has to be viewed in its proper perspective. In this view of the matter, the confiscation of the goods under Section 111(j) is not warranted. Further the provisions of Section 113 applied by the Commissioner for the confiscation of the goods are also not available to him since these provisions provide confiscation of goods attempted to be improperly exported etc. In this case, we have already held that the impugned goods were not export goods and therefore the question of pressing into service of the provisions of this Section would not arise. It is not stated in the order as to under which provisions of law the vessel M.T. Jagpraja is ordered to be confiscated. However, since we have held above that on the basis of the facts obtaining in this case, there is no warrant to confiscate the impugned goods, the same finding shall apply to the order of confiscation of vessel. The same is the reason to not to sustain the penalties imposed under Section 112 and 114 of the Act on the other noticee-parties. A penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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