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TMI Blog2013 (12) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... et Export Order’ was taken only on 31-1-2007; in that case the Hon’ble High Court held that in these circumstances, the exporter and CHA could hardly be said to have committed breach of Section 50(1) of the Customs Act, 1962, since it was beyond their control - Following decision of Commissioner of Customs (Export) v. Kusters Calico Machinery Ltd. [2010 (3) TMI 474 - BOMBAY HIGH COURT] - Stay granted. - C/627-628 and 630/2010 - Stay Order Nos. S/605-607/2011-WZB/C-I(CSTB) - Dated:- 20-12-2011 - Shri Ashok Jindal and P.R. Chandrasekharan, JJ. Shri A.V. Naik, Advocate and G.K. Mundhra, C.A., for the Appellant. Shri S.R. Bhatti, Dy. Comm. (AR), for the Respondent. ORDER By the impugned order, a redemption fine of Rs. 7 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be imposed. He further submitted that neither the goods are available nor they were exported under any bond, therefore redemption fine is also not leviable. 4. The learned counsel for the CHA submitted that the goods were factory stuffed and sealed by the Central Excise officer. Sealed containers reached the port where the CHA has no control. The CHA has processed the shipping bill and on 18-4-2008 being a holiday the CHA was not aware of the loading of the goods into the vessel which was sailed on 18-4-2008 itself. As the loading of containers into the vessel is out of the control of the CHA, as CHA is not permitted to visit the site, therefore, no penalty is leviable on the CHA. In support of his contention, he relied on the decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. 8. Further, as held by the Hon ble High Court in the case of Kusters Calico Machinery Ltd. (supra) where the factual matrix is that the containers were loaded on the vessel which sailed on 30-1-2007 and the same being Moharam holiday for Customs, CHA or the exporter were not authorised to go to Customs area, the Let Export Order was taken only on 31-1-2007; in that case the Hon ble High Court held that in these circumstances, the exporter and CHA could hardly be said to have committed breach of Section 50(1) of the Customs Act, 1962, since it was beyond their control. Therefore, relying on the said decision, we find that the applicant-CHA has made out a prima facie case for waiver of pre-deposit. Accordingly we do so and stay the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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