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TMI Blog2015 (2) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... order that the exporter is involved in the mistake of sailing of the vessel carried out by shipping line. It is also fact that whatsoever mistake has occurred there is no gain flowing to the exporter. It is only a procedural lapse which even does not involve any Revenue. In the same impugned order, the penalty was also imposed on the shipping line and the CHA who were directly involved in the job of loading of vessel and sailing thereof in the port area. Similar issue earlier came up before this Bench of this Tribunal in the case of Emirates Shipping Agencies (I) Pvt. Ltd. [2009 (3) TMI 395 - CESTAT, MUMBAI] and Mohini Organics Pvt. Ltd. cited [2009 (2) TMI 184 - CESTAT, MUMBAI]. - Following the case laws of Bombay High Court in Kusters Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner confiscated the consignment but since the goods were not available, no redemption fine was imposed. A penalty of ₹ 2.50 lakhs on M/s. Pratibha Syntex Ltd., ₹ 3.50 lakhs on M/s. Zim Integrated Shipping Services India (P) Ltd. and ₹ 3.00 lakhs on M/s. Shaan's Cargo (P) Ltd. were imposed under Section 114 (iii) of the Customs Act, 1962. Therefore, the appellant M/s. Pratibha Syntex Ltd., is before me. 3. Shri Ashok Jain, Vice President (Commercial) on behalf of the appellant appeared and submits that as regards the mistake of late issuance of LEO for the loading and sailing of vessel one day prior to LEO is on the part of the shipping line. They have followed the statutory provisions and procedure laid down, suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced reliance on judgement in Nichrome India Ltd. Vs. CC (Export), Nhava Sheva - 2010 (251) ELT 147 (Tri-Mum). Accordingly, the penalty was rightly imposed on the appellant and submits that the appeal be dismissed. 5. I have carefully considered the submissions made by both the sides and perused the records. 5.1 The facts of the case that the export consignment was loaded and the vessel was sailed on 19/03/2007 and Let Export Order was issued on 20/03/2007 is not under dispute. It is the shipping agency who is supposed to perform the job of loading of export consignments to the vessel who in the present case is M/s. Zim Integrated Shipping Services India (P) Ltd. The said shipping line was appointed by the foreign consignee M/s. Hane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper officer of Customs was not handed over to it. But they failed to do. Hence, the penalty is imposable on them for violating the provisions of Section 40 of the Customs Act, 1962. However, taking into consideration the submissions made by the Shipping. Line, I am inclined to take a lenient view and accordingly reduce the penalty from ₹ 7,00,000/- to ₹ 3,50,000/-. 16. The appeal filed by the exporter is allowed in full. The appeal filed by the Shipping Line in partially allowed. The impugned order passed by the Commissioner is modified to the above extent. In the case of Mohini Organics Pvt. Ltd. case it was held that: 13. The learned SDR has cited the Tribunal judgement in the case of M/s. LMJ International Ltd. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalties on the exporter and the CHA, is not sustainable. The same is set aside to this extent. The appeals filed by the exporter and the CHA are allowed. 5.2 Although in the above judgement the single member bench has taken a view that no penalty is imposable upon the exporter on the similar issue but the judgement in Nichrome India Ltd. case (supra) relied upon by the DR, the other single member bench has taken a different view. However, on the similar issue in case of CC (Export) Vs. Kusters Calico Machinery Ltd. - 2010 (257) ELT 368 (Bom) it was held that: 2. The factual aspect is that the shipping line M/s. Neptune Container Logistics Pvt. Ltd. is charged for loading the containers on vessel Bunga Delima Voy No. 005E which sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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