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TMI Blog2015 (2) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority found that in respect of other vessel M.V. Hua Yun - 5 was shifted from one berth to another one and there exists instructions on movements of store-list and EGMs along with vessel. It shows the vessels are shifted from one berth to another quite often in view of the geographical structure and limitation of the Indira docks, Mumbai. Further, the ship can be moved to berth no. 20 ldk only after it is first berthed at 12 ldk. Further, it can certainly be registered in A Division Register, wherein the ship has been re-berthed in B Division. For this, no mala fide can be alleged or adverse view made out for supply on the bonder of ship store Due to oversight for like and alike goods, in view of the quantum of work involved, mistakes are simple and clerical in nature. Further, as regards Nil currency declaration by the concerned officer, it is within the purview of the crew and the captain of the vessel to declare the currency. This being not in the knowledge of the Bonder, it is not the issue that can be probed into by the Bonder or the officers of the customs at the particular moment. The Bonder or others cannot be held responsible for payment received in foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nil currency on arrival due to which the vessel could not pay directly against such import of ship stores in foreign currency by cash. (b) The said imports are not manifest in the IGM/EGM of the said foreign going vessels in accordance with IGM/EGM regulations. Since the shipping bill does not contain stamp of concerned shipping agent, nor there is any evidence of handing over any of the shipping bill copy to the ship officer or export department of Customs. (c) In view of the foregoing, it appears that the goods assessable to duty in terms of Section 17 of the Customs Act were removed from bonded warehouse in contravention of the Section 17 of the Customs Act and, therefore, the respondent MB Bond Store Pvt. Ltd. being importer of the said goods and licensee of the bonded warehouse is liable to pay customs duty and accordingly. There being alleged connivance, the departmental officers were also made party to the proceedings along with staff of the Bonder MB Bond Store and some others being the shipping agent(s). (d) It appeared to the Revenue that customs duty amounting to ₹ 41,01,555/- and interest thereon is leviable and recoverable from the Bonder MB Bond Store ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred appeal before this Tribunal on the grounds which have been discussed hereunder. The respondents are in cross objection. The grounds of Revenue are considered as follows:- (i) The first ground is general in nature and no adjudication is required. (ii) The second ground is that the adjudicating authority has erred in concluding that in absence of conclusive proof like the use of impugned goods in any other manner or recovery or seizure of the goods, the confiscation is bad and in absence of any evidence which can indicate the details for the source of procurement of foreign currency to the authorized agents, were not based on genuine papers and did not consider it fit for invoking the provisions of FERA. It is found from the impugned order in para 5.4.1 read with para 5.4.5, the goods have duly entered the Docks as evident from the endorsement of the BPT staff on the copies of shipping bills. Further, the goods have been received in Port and payment made, which were deposited with the authorized dealer for realization. In the absence of conclusive proof of use of impugned goods in any other manner or recovery or seizure of the said goods elsewhere, it was rightly held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being not in the knowledge of the Bonder, it is not the issue that can be probed into by the Bonder or the officers of the customs at the particular moment. The Bonder or others cannot be held responsible for payment received in foreign currency in spite of nil declaration in the IGM. What is important is that the ship officers have acknowledged the receipt of goods and made payment for the same, which have been duly authorized by the authorized dealer on behalf of the Bonder. Thus, these grounds also fail. (v) The next grounds no. 6 9 that the adjudicating authority has erred in concluding that the discrepancies being bona fide errors and any connivance is ruled out in each case the officers charged would have certainly made sure or have taken enough care to ensure that the records are correct. I find that the adjudicating authority has found any active connivance by way of omission or commission on the part of the concerned officer(s). Further, in all cases, the goods have entered the port area, the entry is there in the Division Register, therefore, the receipts have been given by the concerned ship authority on receipt of goods and payment realized through proper chann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erity' did not bear such endorsements. I find from the impugned order that in respect of supply of MV 'Global Prosperity', it is observed that non-entry in the section register is nothing but lack of attentiveness on the part of the officers and it is bona fide mistake. Further, in absence of evidence of substantive charges that the goods were not taken on board, particularly when the goods were compared and passed in by the BPT officials posted at the gates of the docks and by the officers of the shipping line, evidence of payment, results conclusive evidence that the goods have not been diverted and/or clandestinely removed. 4. The learned Counsel for the respondents relied upon the ruling of the Hon'ble Bombay High Court in the case of Phoenix Mills Ltd. vs. Union of India - 2004 (168) ELT 310 (Bom), wherein it is held that burden of proof always lies upon person who has to prove a fact and it never shifts, but onus of proof shifts. In the present case, Revenue has failed to adduce evidence to show the conclusively that there have been any clandestine removal of goods, except other minor clerical errors in a few documents out of 331 similar documents, where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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