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TMI Blog2015 (4) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... peal No. C/85666/2013, Application No. C/Stay-93349/2013 - - - Dated:- 7-1-2015 - Ramesh Nair, Member (J),J. For the Appellant : Shri Vinay N Ansurkar, Adv. For the Respondent : Shri Senthil Nathan, Dy. Commissioner (AR) ORDER Per: Ramesh Nair: This appeal and stay petition are directed against Order-in-Appeal No. 670 (D,Node Export)2012/JNCH/EXP-94 dated 14/11/2012 passed by the Commissioner of Customs (Appeals), JNCH, Mumbai- II wherein, while upholding the order-in-original, modified the penalty from ₹ 1,25,000/- to ₹ 1 lakh. 2. The fact of the case is that the appellant has filed three shipping bills nos. 5537006 dated 25/08/2006 dated 25/08/2007, 5538875 dated 27/08/2007 and 5538809 dated 27/08/2007 for the cargo '60% cotton 40% poly processed woven M/UPS 250 TC CVC sheet sets and pillow valued at ₹ 457161/-, ₹ 435710/- and ₹ 2983356/- respectively and stuffed in the container No. INBU 4831167. The person incharge of M/s. APL Agencies India Pvt. Ltd., Mumbai loaded the impugned container on the vessel MV APL Yokohama which sailed on 26/08/2004 whereas the 'Let Export Order' (LeO) was granted by the proper o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the shipping line who undertake to load the container on a specific vessel. Thereafter, the proper officer supervises and approves the loading after having satisfied the correctness of the documents received by him. He further submits that it is the responsibility of the shipping line to act in a legally provided manner as regards the movement of the goods, loading of the containers, and it is shipping line who is supposed to load the container on the vessel only after obtaining the 'LEO'. If the shipping line violated the legal provision and loaded the container without obtaining the 'LEO', it is the shipping line who has acted in violation of the provisions, for which the appellant-exporter, who has no role into such activity cannot be penalised. The learned counsel also submits that in similar cases, not only the exporter but the CHA was also granted immunity from penalty and/or fine. The learned counsel places reliance on the following judgments: i. Soham Logistics Pvt. Ltd. vs. Commissioner of Customs (Export), Nhava Sheva 2010 (261) ELT 1176; ii. Mohini Organics Pvt. Ltd. vs. Commissioner of Customs (Export), Nhava Sheva, 2009 (240) ELT 589; iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exporter. From the order-in-original, it can be seen that the shipping lines, M/s. APL Agencies India Pvt. Ltd., has also been imposed with a penalty of ₹ 2,25,000/-. 6.1 On a similar issue, in the case of Soham Logistics Pvt. Ltd. the Tribunal held as follows: 8. The main thrust of the allegation is on the shipping line, which allowed the goods being loaded on the vessel without the proper documentation and without the supervision of the proper officer. It is true fact that when the goods are gated in, the goods are beyond the control of the CHA and the exporter. The reliance paced by the learned SDR in the cases of Sudarshan Cargo in appeals No. C/650, 809 1057/08 (cited supra at Sr. No. iv) and Zenith Rubber Plastic Works (supra), the exporter was also held liable for such a breach. In this case, it was found that exporter completed all the necessary formalities in exportation of the goods and held that they have not faulted any provisions for loading of the goods without LEO. The CHA is mere an agent of the exporter, but the exporter has been exonerated, so the reliance placed by the SDR is of no help. The case of LMJ International (supra) and Mehta Export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, therefore, they have violated the provisions of Section 40 of the Customs Act, 1962. Therefore, they are liable to be penalised. But in the case of CSAV Group Agencies (India) P. Ltd. - 2009 (248) E.L.T. 165 the Hon'ble High Court has reduced the penalty to 40% of the penalty imposed by the adjudicating authority. Therefore, I reduce the penalty to 40% of the penalty imposed by the adjudication authority. 6.4. In the case of Kusters Calico Machinery the hon'ble High Court held that: 3. They could not take Let Exporter Order (LEO) before 30th January 2009 it being holiday. It could only be taken by them on 31st January, 2009. In the 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. 4. So far as shipping line is concerned a penalty of ₹ 5,00,000/- was imposed under Section 114(iii) for having committed breach of the provisions of the Customs Act. It appears that the said penalty has been accepted by them. In view of the factual data available on record, no fault could be found with the view taken by the Tribunal. The appeal is thus without any subst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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