9911796707
TMI Blog2011 (2) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... es in accordance with law and the principles of natural justice. - C/400 to 406 & 769/09 - - - Dated:- 18-2-2011 - Mr.P.G. Chacko, Mr. Sahab Singh, JJ. (Represented by: Mr. H.K. Prem with Ms Priyanka Vegad, Advocates For Appellant) (Represented by: Mr. V.K. Singh, SDR For Respondent) Per: P.G. Chacko 1. In these applications, the appellants seek waiver of pre-deposit and stay of recovery in respect of the amounts adjudged against them. 2. After examining the records and hearing both sides, we have found this to be a fit case for remand and, therefore, after dispensing with pre-deposit, we proceed to deal with the appeals. 3. The controversy involved in the case revolves around two marine vessels, namely 'Al-Rehmat' (cargo tanker) and 'Rajveer' (barge). The records indicate that 'Al-Rehmat' had a labyrinthine sail in the Arabian sea during April 2001. The vessel carried 890 MTs of diesel (HSD oil) from Dubai some time in April 2001. As per the Bill of Lading, its destination was Colombo but it never reached that port. In the night of 24/25 April 2001, the vessel was located at Bombay Floating Lights Area, about eight nautical miles from Bombay coast. Betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whosoever found liable on final adjudication of liability. Pursuant to the High Court's direction, the Commissioner of Customs, Ahmedabad allowed provisional release of the vessel. The Commissioner also allowed re-export of the cargo (429 MTs of diesel oil) as requested by Moon Star against payment of redemption fine of Rs 5 lakhs and a penalty of Rs 2 lakhs as well as bond for the full value of the goods. The party complied with this order of the Commissioner and obtained provisional release of the vessel and the goods. On 23.11.2001, the Commissioner of Customs, Ahmedabad issued a show-cause notice to the owners and the crew members of 'Al-Rehmat' proposing inter alia to confiscate the vessel under Section 115 of the Customs Act and also to confiscate 429 MTs of High Speed Diesel Oil under Section 111 of the Act. The noticees were also directed to show-cause why a redemption fine should not be imposed in lieu of confiscation of the vessel. Moon Star was also asked to show-cause as to why the fine of Rs 5 lakhs and the penalty of Rs 2 lakhs provisionally imposed and recovered from them should not be confirmed. Penalties were proposed under Section 112 of the Act on all othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the adjudicating authority to decide the matter expeditiously after receipt of the replies to the show-cause notice. In respect of Mr. Adi Mehta (3rd petitioner), the Hon'ble High Court directed that his involvement and the question of jurisdiction be decided as a preliminary issue. The High Court's order was passed on 11.6.2002. Thereafter, there was no response from the adjudicating authority for a long time and, therefore, Mr. Adi Mehta made an application through his counsel under the Right to Information Act for obtaining information as to the decision taken by the Commissioner of Customs (Preventive), Mumbai in relation to Shri Adi Mehta. In response to this query, Mr. Adi Mehta's advocate was informed that the Commissioner of Customs had discharged Mr. Adi Mehta. 7. Meanwhile, CBEC issued Notification No. 20/2006-Cus (NT) dated 28.2.2006 appointing the Commissioner of Customs (Import), Mumbai as the officer of Customs empowered to adjudicate both the show-cause notices. 8. Accordingly, on 22.9.2006, the Commissioner of Customs (Import) heard the counsel for M/s Moon Star, M/s Millenium and others.The counsel for Moon Star and the counsel for M/s Raj Transport and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- on execution of bond. I therefore confirm the said redemption fine and penalty imposed by Commissioner of Customs, Ahmedabad (Gujarat). 3. I order to initiate action under Sections 132 and 135 of the Customs Act, 1962 against Shri. Abdul Kadar, owner of M/s Millenium Ship Trading LLC, Shri Satwinder Singh Padda, Working Superintendent, M/s Moon Star International Ship Trading Co. LLC, Dubai, Shri Rajesh Kumar, Master of vessel Al Rehmat, Shri Bhaskar, Chief Officer of vessel Al Rehmat, Shri Davinder Singh, Chief Engineer of Vessel Al Rehmat and Shri Deep Kumar, Second Engineer of vessel Al Rehmat. 4. The 461 MTs of HSD Oil valued at Rs 66.12 lakhs illegally discharged and cleared without payment of Customs duty is confiscated under Section 111 of the Customs Act, 1962. As the same is not available for confiscation, it is redeemed on payment of Redemption Fine of Rs 33,00,000/- (Rupees Thirty three lakhs only) in lieu of confiscation in terms of provisions under Section 125 of Customs Act, 1962. I also order to recover the Duty Rs 32.02 lakhs (27.44 lakhs + 4.58 lakhs) along with applicable interest in terms of provisions under Section 28 (1) and 28AB of the Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar in terms of provisions under Section 112 of the Customs Act, 1962. 16. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on Shri Bhaskar in terms of provisions under Section 112 of the Customs Act, 1962. 17. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on Shri Davinder Singh in terms of provisions under Section 112 of the Customs Ac, 1962. 18. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on Shri Deep Kumar in terms provisions under Section 112 of the Customs Act, 1962. 19. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on Shri Dilip Daki in terms of provisions under Section 112 of the Customs Act, 1962. 20. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on Shri Binod Das (Master of Barge Rajveer) in terms of provisions under Section 112 of the Customs Act, 1962. 21. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on Shri Adi Mehta in terms of provisions under Section 112 of the Customs Act, 1962. 22. I impose penalty of Rs 4,00,000/- (Rupees Four lakhs only) on Shri Pervez Mehta in terms of provisions under Section 112 of the Customs Act, 1962. 23. I impose penalty of Rs 4,00,000/- (Rupees Four l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged by the Commissioner of Customs (Preventive), Mumbai. This fact was specifically stated by the counsel for M/s Moon Star in his letter dated 4.10.06. But the Commissioner proceeded to impose a penalty on Mr. Adi Mehta under Section 112 of the Customs Act. Even the learned SDR has fairly acknowledged this illegality. At this stage itself, we set aside the penalty of Rs 4 lakhs imposed by the Commissioner on Mr. Adi Mehta and his appeal C/401/09 stands allowed. Even then, the vitiating factor remains, namely, non-application of mind by the Commissioner. 13. Another submission made by the learned Commissioner is that the decision of the Commissioner with regard to 461 MTs of HSD oil is uncalled for. It is submitted that any such quantity of diesel oil was not seized either from 'Al-Rehmat' or from the barge and that, in the absence of the goods, it was not open to the Commissioner to order confiscation (and impose fine) or impose penalty in connection therewith.The learned SDR has not succeeded in meeting this argument. On our part, we find that the decision to confiscate the above quantity of diesel oil (with option for redemption against payment of fine) and to im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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