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TMI Blog2017 (8) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... e were never recalled. The goods were permitted to remove from the customs area, by the concerned officers. The importers and/or their agents or employees cannot be held responsible for removal from the Customs area of the port in such situation. The CESTAT has noted that the “removal” and “clearance” cannot be equated to clear the goods for home consumption under Section 47 of the Customs Act. The permissions to clear the goods would not be in violation of Section 111(j), which is applicable to “removals” and not to the “clearance”. There is no justification and explanation on record as to why those permissions and clearance were not revoked or set aside. There is no denial to the fact of granting clearances and permissions and release of vessels with goods. There is no case of declaration or mis-declaration. The necessary documents were with the concerned department, even at the time of such permissions and clearance stage. Both the parties, including the concerned officers have knowledge of the documents and the supportive material. It is an admitted position that the payment of duty has been made before issuing show cause notice itself. It is settled that Section 46 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein permissions were statutorily to obtained for clearance of the goods as per the provisions of section 47 of the Customs Act, 1962? c) Whether the CESTAT was correct in treating the goods imported only as foreign vessels, requiring permissions for conversion and port clearance instead of treating them also as imported cargo whereas the importers had imported vessels and had filed Bills of Entry for clearance of the vessels as goods as required under section 46 of the Customs Act, 1962 for the clearance of which the compliance of the provisions of section 47 was a statutory requirement? d) Whether the CESTAT was correct in holding that the confiscation under section 111(j) is not applicable since the section 111(j) deals with permission for removal of the goods while section 47 of the Customs Act, 1962 relates to permission for clearance and nowhere in the Act the terms 'removal' and 'clearance' have been defined. e) Whether the CESTAT was correct in holding that the confiscation under section 111(j) was not correct since the importers had the pay orders ready for payment of duty whereas, as per section 47 of the Customs Act, 1962, the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er assessment. 6. On 22.11.2004, M/s. J.M. Baxi requested the Export Department, to issue instructions to convert the vessel 'M.V. Sea Diamond' of Importer M/s. Boskalis Westminister Middle East from Foreign Run to Coastal Run as the Bill dated 11.11.2004 filed at Import Department and processed. On 23rd November, 2004, Importer M/s Boskalis Westminister Middle East cleared the goods as stated, without payment of custom duty and obtaining the Out of charge from the proper officer of the Customs. 7. On 24.11.2004, M/s. J.M. Baxi requested the Export Department to issue instructions to convert the vessel/barge of M/s. Hyundai Heavy Industries from Foreign Run to Coastal Run as the Bill dated 23.11.2004 filed and processed at Import Department of Customs. As stated, the goods of the Bills were not examined on first check. It was examined on 27.11.2004. 8. As stated, on 28.11.2004 M/s. Hyundai Heavy Industries cleared the goods of the Bill, dated 23.11.2004. In the similar fashion, by stated misrepresentation, on other Bills, the Importer had not submitted pay order for the total duty leviable on the goods on the clearance of the goods. 9. On 11/12/2004, the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication for Transfer of Bench was filed before CESTAT. 17. On 12.01.2006, this Court dismissed Writ Petition (L) No.3054/2005 as the Tribunal had started the hearing of the main appeals filed by Respondent Nos.1 and 5. On 19.1.2006, Revenue filed Writ Petition Lodging No.119 of 2006 for transfer of Bench of the Tribunal hearing Appeal. On 19.1.2006, hearing was completed by CESTAT of Appeal No.C/1431 1465/05Mum. and granted two weeks time to both the parties to file written submissions. On 20.1.2006, this Court dismissed the Writ Petition of the Department as withdrawn since the hearing before CESTAT had been completed. 18. On 03/02/2006, the Department submitted written submissions to the CESTAT. The CESTAT, passed the Common Final Order dated 14.8.2006 wherein the confiscation was set aside. Therefore, on 08/12/2006, a prayer was made to cancel the B.G. of ₹ 39.37 crores. 19. On 13.12.2006, the Customs Appeal was filed by the Department challenging the CESTAT order dated 14.08.2006, making all the noticees/ the Respondents herein as party. On 14.12.2006, this Court gave date for hearing of Customs Appeal on 20.12.2006 alongwith W.P. No.3046/2006 of M/s. Hyundai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission;.... Section 112 (a) Penalty for improper importation of goods, etc.Any person.... (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or....... Reasons in support of operative part of this Judgment: 22. CESTAT, being a statutory Appellate Tribunal of exports, has considered, keeping in mind the provisions of law and the documents so available on record, and so also the background of the transactions. There is no issue that these vessels, barges, self propelled tugs and consumable stores on board, were imported. They were chargeable to the duty, as prescribed. These vessels and barges were imported subject to reexport conditions after the work of conducting high technology laying of pipelines etc. from ONGC wells in Bombay High, to main land at Uran, on the basis of the contract. The bills of entries were filled in all cases, after the vessels, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act of release and/or selling of vessels, barges from Mumbai port, just cannot be overlooked especially when every mechanism, machinery and required procedure was available under the provisions and the same were under the control of the concerned authorities. As noted, they have already been cleared the requisite permissions/clearances to the Respondents. There was no issue about the requisite payment so, deposited at the relevant time. 25. A plain reading of these Sections and considering the fact that at the relevant time, and subsequently for the period upto the stage of release, clearances and such removal of the vessel, no way can be stated to be in contravention of any provisions. The relevant time, there was proper compliances from the side of the Respondents, now it cannot be the foundation of misrepresentation. The delay to the assessment by the Appellant's Officers, cannot be the reason for taking such action of seizing and confiscating and imposing of penalty. Admittedly, though there are procedures and powers provided under the Customs Act to the Appellant of reviewing and/or challenging and/or revoking the permissions/ clearances so granted, there were no such s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and clearance cannot be equated to clear the goods for home consumption under Section 47 of the Customs Act. The permissions to clear the goods would not be in violation of Section 111(j), which is applicable to removals and not to the clearance . We also endorse these reasons. 28. The CESTAT has noted that even, the no action of appraisal, cannot be a reason to hold the Respondents liable. It is noted that this is not the case of mis-description and of any breach regarding the declaration. The goods were under import. The Appellants were ready with the duty/payment. Once the goods are removed by obtaining port clearance, there was no question of such confiscation under provision of section 111(j) of the Customs Act and of penalty on the Respondents. There was no loss of Duty. This is not a case that Respondents deliberately, by breaching the basic provisions of law, had removed unaccounted goods, without written permissions. The show cause notices itself noted that, all supporting documents, materials and requisite permissions were placed on record. The nature of contract and short duration and the purpose and object of these imports and practical part of removal of vessel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same, after due declaration. Therefore, in the present case, the Department /revenue failed to discharge its burden, as required under the law. There is no case made out of any willful or intent to evade duty to bring in the case of fraud and collusion . There is no case of stated misstatement or suppressing of fact . The impugned order, therefore, needs no interference, even on the ground of stated delayed decision. All the questions of law, therefore, are required to be answered accordingly. 32. Having once recorded the above reasons, the written submissions, based around the action of show cause notice and the related proceedings, even by recording the statement of concerned officers and/or of the Respondents, are of no assistance to interfere with the findings so arrived at by the CESTAT. There is no case of perversity and/or illegality. The oral evidence, cannot override the written permissions/clearances, on record. Therefore, for the reasons recorded above and in addition to the reasons so recorded in the impugned order, we are inclined to dismiss the appeal. All the questions are answered accordingly, against the department and in favour of the Respondents. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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