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TMI Blog2010 (10) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee - C/568-570 , 595/2009 - A/1857-1860/2010-WZB/AHD - Dated:- 14-10-2010 - Ms. Archana Wadhwa, Shri B.S.V. Murthy, JJ. REPRESENTED BY : S/Shri Vipin Kumar Jain and Vishal Agarwal, Advocates, for the Appellant. Shri R. Nagar, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - M/s. Essar Power Gujarat Ltd. (the first appellant) imported a consignment of steel structures, boilers, generators etc. for setting up 1200 Mega Power Plant in Gujarat. The goods were landed, unloaded and stored at RO-RO/LO-LO jetty at Vadinar Port of Jamnagar. Vadinar Port is notified as a Customs Port under Section 7(a) of the Customs Act, 1962 (the Act) for the purpose of unloading of imported goods and loading of export goods or any class of such goods. However the Commissioner of Customs, Ahmedabad had approved the customs area in Vadinar Port as a landing place for unloading of imported goods namely machinery and equipment (including project imports) imported for Essar Oil Refinery Project and for loading of machinery and equipments imported for Essar Oil Refinery Project under Section 8(a) of the Act. Similarly M/s. Essar Oil Ltd. (the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to restrict it to particular goods; once notification has been issued by the Board under Section 7 of the Act specifying the port for unloading of import goods and loading of export goods or any class of such goods, it was not open to the Commissioner to hold that the jetty was a captive jetty of M/s. Essar Oil Ltd. (the second appellant) and only their goods could have been unloaded; this contention sets to naught provisions of Section 7 and the notification issued there under. The conclusion of the Commissioner in the impugned order that until and unless the custodian, the second appellant brings to the notice of the proper officer that it intends to handle all kinds/types of goods and for other importers also, the captive jetty cannot be declared upon suo motu by the departmental authorities for unloading of any type of goods belonging to any importer under Section 8 by issuing a notification; there was no need for any application by the second appellant and after the notification was issued under Section 7, the Commissioner himself should have issued another notification; having acquiesced in the unloading of the goods at Vadinar port by granting permission and supervising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stal goods or any class of such goods with all or any specified ports in India. [(2) Every notification issued under this section and in force immediately before the commencement of the Finance Act, 2003 shall, on such commencement, be deemed to have been issued under the provisions of this section as amended by section 105 of the Finance Act, 2003 and shall continue to have the same force and effect after such commencement until it is amended, rescinded or superseded under the provisions of this section.] SECTION 8. Power to approve landing places and specify limits of customs area. - The [Commissioner of Customs] may, (a) approve proper places in any customs port or customs airport or coastal port for the unloading and loading of goods or for any class of goods; (b) specify the limits of any customs area. 5. Initially vide Notification No. 62-94-Cus. (N.T.), dated 21-11-94 Central Government had notified Vadinar Port as Customs port under Section 7(a) of the Act for the purpose of unloading crude petroleum. Vide notification No. 51/97-Cus. (N.T.) dated 29-9-97, the purpose was notified as for : (A) Unloading of following imported goods namely : (i) Crude p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 8 of the Act. Goods have been confiscated under Section 111(h) of the Act which provides for confiscation of any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of Section 33 or Section 34 of the Act. According to Section 33 of the Act, except with the permission of the proper officer, no imported goods shall be unloaded and export goods shall be loaded at any place other than a place approved under clause (a) of Section 8 for the unloading and loading of such goods. However Section 111(a) of the Act provided for confiscation of any goods which are unloaded at any place other than a customs port appointed under clause (a) of Section 7 of the Act. In the case of goods which are unloaded in a place other than a port, goods are liable to confiscation under Section 111(a) whereas in the case of goods landed in a place contrary to provisions of Section 33, goods are liable to confiscation under Section 111(h) of the Act. Section 33 empowers the proper officer to give permission even in places other than the one approved under Section 8 of the Act. Therefore what is to be examined is whether the goods were unloaded without the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 7 of the Act in 2005. In our opinion this was a fit case where ex-post-facto permission should have been granted and matter regularized. If the proper officer was to grant post facto approval, there will be no case against the appellant at all. We find that the learned Commissioner has not taken into account this aspect at all. The fact that the proper officer has the power and in our opinion this was a case where such a power should have been exercised has not been considered by the learned Commissioner at all. His observations in this regard are available in para 12.3 of the impugned order and are reproduced below : 12.3 As regards, the notice No. 1 s contention that the goods have been unloaded under the supervision of the Customs authorities and that the cargo declaration form filed under Section 31 of the Customs Act, 1962 clearly stated that the goods are imported by the Notice No. 1 (i.e. M/s. Essar Power Gujarat Ltd.), I find that importation of goods involves series of procedural steps and compliances, which begin with filing of an IGM and culminates on grant of out-of-customs charge under Section 47 of the Customs Act, 1962 by the officer. Normally whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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