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TMI Blog2002 (12) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... act with the said firm was cancelled by the P I Club of the United Kingdom (hereinafter referred to as P I ) and P I granted necessary authority to CPT to engage M/s. Smit Tak B.V. Rottordom, another salvage company. The said Dutch company had a wholly owned subsidiary in Singapore, the appellant herein were assigned the salvage work. The appellant appointed M/s. Forbes Gokak (Patvolk Division) Ltd., Calcutta (hereinafter referred to as Patvolk ) as its husbanding agent in connection with the above-said salvage work. The Patvolk by a letter dated 23rd March, 1999 requested the Principal Commissioner of Customs, Calcutta to extend the validity period of the customs duty exemption in respect of removal of the wreckage till 31st December, 1999 and also requested for waiver of customs duty under Section 25 of the Customs Act, 1962 in respect of salvage barges/tugs and equipment brought in by the appellant for the purpose of the salvage operation. The CPT informed, by letter dated 1st April, 1999, the Commissioner of Customs (Port) that the appellants were mobilizing equipment/crafts to commence the work. The appellants mobilized the following equipment and machinery - Ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le thereon. Serial No. 200 of the TABLE in the said Notification provided exemption for goods falling under Chapter Heading/Sub-Headings 89.01, 89.02, 89.04, 8905.10 and 89.06 of the Schedule of the Customs Tariff Act, 1975 which was applicable to the appellants as submitted by them. 2. Enquiries were conducted by the Special Investigation Branch and summons were recorded and orders under Section 110 of the Customs Act were served on Patvolk purporting to seize the equipment/machinery/ material/consumables brought in for the purpose of the salvage operation. The salvage work commenced on 23rd March, 1999 however no Bills of Entry were filed by the appellants for the equipments and machinery brought. However, the import general manifest was filed and a list of machinery, equipment, etc., was prepared by the Customs Officers who inspected the Barges/Tugs. The appellants sought permission of the Commissioner of Customs to file the Bills of Entry and vide letter dated 20th August, 1999 the Customs authorities permitted Patvolk to file the Bills of Entry, upon condoning the delay. Accordingly Bills of Entry were filed. 3. On 3-9-99, a Show Cause Notice was issued alleging the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire quantity of duty demand and penalty was paid without prejudice. On 24-12-99, the Commissioner by a letter informed Patvolk that due to fluctuation of exchange rate, since Bills of Entry filed were pending relating to the import of equipments/materials, it had come to the notice of the Commissioner that an additional amount of Rs. 94,705/- had become payable as a result of the assessment of the said Bills of Entry with reference to the exchange rate prevailing on the date of filing of the Bills of Entry. The said amount was also paid. The said amount was deposited under protest. Thereafter on or about 28-2-2000, the appellant received the formal adjudication order dated 21st September, 1999 along with an addendum thereto dated 24-12-99 confirming duty liability of Rs. 42,71,471/- on consumables, spares, etc., which were on the Barges and Tugs (vessels) and also further confirmed that duty of Rs. 1,95,556.65 in respect of a mechanical grab crane, an equipment of MAGNUS X . An additional amount of Rs. 94,705/- was confirmed by Addendum dated 24-12-99 due to exchange rate fluctuation and penalty of Rs. 10 lakhs under Section 112(a) of the Act imposed on the appellant, pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the retrieval operation without having specific import licence therefor or without execution of legal undertaking/Bank Guarantee to the satisfaction of the Customs authorities in respect thereof in terms of the existing Import-Export Policy and that hence there was violation of the rules, procedures and requirements under the said Act by the appellant even though their intent has not been suspect , refrained from confiscating the same and allowed re-exportation thereof upon a caution to be careful in future and that such leniency would not be repeated in the event of recurrence, since the work of retrieval had been completed satisfactorily and it was in the general interest of the Calcutta Port that such work was undertaken. This order of the Commissioner was accepted by the Department. No appeal was preferred against the same nor any cross-objection filed in the appeal preferred by the appellant against the first order before this Hon ble Tribunal, in the premises, in the de novo remand proceedings the Commissioner had no authority or jurisdiction to impose a redemption fine of Rs. 40 lakhs in lieu of confiscation of any said old used equipment and machinery and the vessel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st order of the Commissioner was therefore wholly without authority of law and direct refund thereof to the appellant. It was incumbent upon the Commissioner having come to the conclusion that no duty of customs was demandable from the appellant, contrary to the proposal contained in the subject show cause notice to hold that the penalties imposed upon the appellants under Section 112(a) of the said Act by the first order also could not be sustained and therefore direct refund of the said wrongfully and unlawfully realized penalties of Rs. 12 lakhs (in all). The Commissioner, however, having realized that this total sum of Rs. 57,61,732.65, which had been unauthorisedly, wrongfully and without authority of law realized from the appellant, had now to be returned in view of his findings as contained in the said order on the dutiability of the consumables and mechanical grab, proceeded to traverse beyond the scope of the remand proceedings and contrary to the findings and/or order of the Commissioner in the first order purported to impose redemption fine in lieu of confiscation in order to more or less neutralize the amount that had become refundable to the appellant. This action of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Export-Import Policy for the time being in force. Section 19 of this 1992 Act, empowers and authorize the Central Government to make Rules for the purpose of carrying out the provisions of the 1992 Act, including those relating to, inter alia, import licence to be issued under Section 9 of the 1992 Act. In exercise of the powers conferred by said Section 19 of the 1992 Act, the Central Government framed the Foreign Trade (Regulation) Rules, 1993 which, inter alia, provides for grant of import licence and conditions and other related matters thereto. On 31st December, 1993 the Central Government, in exercise of powers conferred by Section 3 read with Section 4 of the 1992 Act, framed the Foreign Trade (Exemption from Application of Rules in Certain Cases) Order, 1993. In terms of Clause 3(1)(d) of the said 1993 Order, inter alia, goods imported and bonded on arrival for re-export as ship stores to any country outside India except Nepal and Bhutan are exempted from the provisions of the Foreign Trade (Regulation) Rules, 1993. No import licence was required in respect of impugned ship stores which are to be eventually exported. In the present case the Commissioner having held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not liable to confiscation under Section 111(1) of the Customs Act. As in the show cause notice dated 3rd September, 1999, in Paragraph 12 (at Page 7) thereof, it was alleged, inter alia, as follows - M/s. Forbes Gokak Ltd., till date has filed two Bills of Entry Sl. No. 1681 and 1682 both dated 24-8-99 covering Smit Lombok, Smit Lloyod III and Magnus X only and in respect of the other equipments, materials despite opportunity given to them by the Commissioner to file Bills of Entry by 23-8-99 they have failed to file the Bill of Entry. . It is thus, how the Commissioner purported to come to the conclusion that these three items had been imported and re-exported without filing of Bills of Entry and hence they were liable to confiscation under Section 111(1) of the said Act, an erroneous finding. All the Bills of Entry filed by the appellant in the present case formed a part of the proceedings in the Appeals CR-123 to 125/2000 before this Tribunal in which the order dated 22nd May, 2001 was passed. The said documents were also a part of the de novo proceedings before the Commissioner. The said Bills of Entry clearly not only evidence filing of the Bills of Entry in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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