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TMI Blog2014 (10) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... iginally procured. In the facts & circumstances of this case, it becomes difficult to appreciate as to why the cargo was brought into territory of India for transshipment when the same was to be taken back to the same place from where the goods originated. At the time of taking cargo out of India also no port of destination was given by the main appellant. From the facts available on record; incomplete description of the cargo given in the cargo declarations, no mention of the port of destination and the name of any prospective buyer and taking of ‘gas oil’ back to the same place from where partly the cargo originated, suggest that crgo was not for transshipment. As per the contents of the letter dt.30.04.2010 written by the main appellant to the Joint Commissioner Customs Kandla, the main appellant and their CHA were well aware that there are earlier examples where transshipments have been granted and certain importers like M/s Adani Enterprises Ltd have already explored the possibility of supply of HSD to EOUs, units in SEZ and as bunkers for internationally sailing vessels, after warehousing the same. Goods ‘gas oil’, subsequently equated to HSD, was not intended for trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t SEZ Ltd. (Custondian), Shri Anand Marathe (DGM of Liquid Terminal of M/s MP SEZ Ltd Mundra), Capt. Umesh Abhyankar (Chief Operating Manager of M/s MP SEZ Ltd) Shri D. Mahaptra (Ex.Senior Terminal Manager of M/s Friends Salt Works Allied Industries Kandla) respectively with respect to imposition of penalties upon them under Section 111(a) or 111 (b) of Customs Act, 1962. 2. Brief facts of the case are that main appellant brought the consignments of goods mentioned below and declared the same as Gas Oil in Form III of Import Manifest on 24.11.2009: Vessel Name Description of Goods Quantity B/L No./Dt. Port of Discharge M.T. Rainbow Star Gas Oil 34272.066 MT PP519/09.05.2009 Mundra M.T. Gan-Venture Gas Oil 5100.00 MT P4966/04.11.2009 Mundra M.T. Gan-Venture Gas Oil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That as per Para 4 of CBEC Circular No.14/2007-Cus, dt.16.03.2007 also transshipment was permissible as the cargo was not one of prohibited category. That in the case of appellants DGFT has clarified that no ITC violations exist if cargo is meant for transshipment. That as per Para 2.3 of the relevant Foreign Trade Policy, the clarification issued by DGFT is binding on all concerned, in view of the following case-laws:- i) Bhilwara Spinners Ltd Vs UoI [2011 (267) ELT 49 (Bom.)] ii) Unimers India Ltd Vs CC Mangalore [2010 (250) ELT 225 (Tri-Bang.)] iii) Amitex Silk Mills Pvt.Ltd. Vs CCE Surat [2006 (194) ELT 344 (Tri-Del)] 3.2 It was also argued by Ld.Advocate that as on merits the case goes in favour of the appellants, therefore, no penalties are imposable upon his clients as none of the persons was individually going to gain from the transshipments. On a specific query from the Bench it was explained by the ld.Advocate appearing on behalf of the main appellant that one consignment came from Middle East and the second consignment came from Indonesia. It was also explained that cargos were full vessel loads and taken out of India by the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. It was strongly argued by ld.A.R. that the adjudicating authority in Para 27.25 of the adjudication order has correctly held that the goods in question do not qualify to be a transshipment cargo as there was no intention to transship the cargo as required under Section 54 of the Customs Act, 1962. vi) That the imported goods kept in the bonded tanks do not remain transshipment cargo if the clearances are not effected within 6 months as required under Section 48 of Customs Act, 1962. That the main appellant did not seek any extension of time even after 6 months of the import. vii) That in the electronic manifest proforma there are fields for specifying (a) port of destination, and (b) cargo movement code. For cargo movement, there are three codes which need to be filled correctly with proper port of destination. viii) That international transshipment of cargo needs to be effected within 30 days of entry inward of the importing ship as per the prescribed procedure which CHA, acting as agent of the main appellant, is expected to know. ix) It was, therefore, the case of the Revenue that redemption fines and penalties have been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appellant, through its CHA, filed an application dt.30.11.2009 for storing the liquid cargo (gas oil) into the shore tanks. The description given in the IGM (Form C cargo declaration) dt.24.11.2009 indicated the goods as follows:- Gas Oil 0.5% (This is a transshipment cargo and to be transshipped to any foreign port) 7. It is observed from the cargo declaration that liquid cargo in bulk was not declared as HSD . The word HSD along with gas oil was first mentioned by the main appellant in letter dt.08.04.2010 written by the agent of the appellant to the DGFT seeking clarification that no violations are done by the appellant in view of Rule 3 of the Foreign Trade (Exemption from application of rules in certain cases) Order 1993. All the documents like transshipment application, bill of lading, IGM was, therefore, contained the description of the imported liquid cargo as gas oil at the time when the goods were stored in the shore tanks. 8. It is observed from the prevailing import-export policy at the relevant time that Hydrcarbons of Import Export Policy headings 27101111, 27101112, 27101113, 27101119, 27101120, 27101190, 27101930, 2710 1940 were permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there are fields for port of destination and cargo movement code. Such procedural requirements cannot be expected to be ignored by the CHA of the main appellant who is well aware of the transshipment provisions/procedures when acting on behalf of the main appellant and was well aware of the facts the transshipment in other case of methanol was given under similar circumstances for the goods which were freely importable. IGM declaration given in that case is not pressed into service by the appellants to compare as to what description/declaration was given in that case by the importer in the IGM. Further, in the case of a full vessel load it is difficult to understand as to why cargo was required to be unloaded into shore tanks for transshipment when a fully chartered vessel can be taken straight to the port of destination. Transshipment provisions are not meant for undertaking business/ trading activities in India as claimed by the main appellant. It is also extremely difficult to comprehend that cargo, worth more than ₹ 200 Crores in both these cases, was kept idle for more than 6 months without the main appellant asking for extension of storage period under the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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