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TMI Blog2015 (3) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... raise substantial questions of law. Since there are three Appeals and which involve a common point, we have taken them together. We would take the facts from Appeal No. 51 of 2014. 2) The substantial questions of law can be formulated as under: "(i) Whether in the facts and circumstances of the case and in law, was the Tribunal justified in maintaining the order imposing penalty on the Appellants by taking recourse to section 158(2)(ii) of the Customs Act, 1962 in the absence of any specific Regulation or any power in that regard? (ii) Assuming that the regulation of Handling of Cargo in Customs Area Regulations, 2009 providing for imposition of penalties could, in the facts and circumstances of the case, can it be held that the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he areas being demarcated therein and in possession of the Appellants. The Commissioner was requested to notify these facilities as a CFS under section 8 and 45 of the Customs Act, 1962. The case of the Appellants is that they secured and safeguarded the entire area of CFS by erecting a compound wall along with barbed wire fencing at the outer boundary. 6) The Appellants rely upon these permissions which have been granted and notifying the area as a CFS. The Appellants were also notified as Custodians and Customs Notifications are relied upon in that regard. The Regulations, inter alia Handling of Cargo in Customs Area Regulations, 2009 (HCCAR) are referred and to rely upon the physical verification of the CFS premises carried out by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies and the Managing Directors have not adhered to the Regulations. The facts have been referred to till paragraph 3 of the impugned order and all that has been observed and reasoned is in para 5. That para reads as under: "5. The ld. Counsel failed to produce the copy of application for registration. Moreover, in the Registration certificate survey no.117 was not entertained, therefore although the appellant may have applied for Survey no. 117 but without they have been granted to operate from works from Survey no. 117, the appellant is not entitled to operate from Survey no. 117. In these circumstances, I do not find any infirmity with the impugned order. Further, penalty on the appellant are highly excessive, therefore, the same is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly left out of consideration by the Tribunal. Therefore, its order is vitiated by non application of mind and can safely be termed as perverse. 8) On the other hand, Ms. Shah appearing for the Respondent would submit that the Tribunal has in its discretion reduced the penalty and brought it down. The penalty was imposable because the record indicates as to how the portion admeasuring 4389 square meters was not part of the CFS and as approved and yet the goods or containers were stored therein. In these circumstances, the Appeals does not raise any substantial question of law and the factual finding cannot be reappreciated and reappraised in our limited jurisdiction. Therefore, the Appeal be dismissed. 9) Having perused the Appeal paper bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all. The land 1 acre was owned by one Ramesh Gharat, who has given the said land to the Appellants on 15 years' lease. This land together with the rest of the land, about which there is no dispute, was enclosed by 10 feet wall and as such was presented for inspection and notification by the Customs. The only mistake or error and unintentional, if any, is not including in the application the Survey No. 117. Now, in the light of such a reply, it was incumbent upon the Tribunal to find out whether the allegations in the show cause notice and particularly of violation of Regulation 6(n) and Regulation 9 could be held to be established and proved. Regulation 6(n) sets out the responsibility of Customs Cargo Service Provider not to make any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... berate. All such matters are extremely relevant so as to impose penalty or justify such imposition. An imposition of penalty has a far reaching effect and consequence and may result in suspension of the approval or withdrawal of it or nonPage renewal thereof. Therefore, all such matters have to be gone into and considered meticulously, minutely and seriously. That having not been done and the Tribunal failing to apply its mind to some of the most important and crucial factors that we are constrained to set aside the impugned order. 12) We accordingly allow these Appeals. We quash and set aside the impugned order and restore each of the Appeals to the file of the Tribunal for being decided afresh on their own merits and in accordance with l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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