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TMI Blog2017 (11) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... s by including their names in the over-side discharge guarantee filed by them - Though the said activity of the appellant, is in violation of the procedural condition as envisaged in the Customs Act, 1962, but keeping in view, that no duty liability was involved and appreciating the reasons given by the assessee, the confiscation of the other imported goods or the barges and the imposition of penalty upon the appellants, would not be justified - appeal allowed - decided in favor of appellant. - Cus. Appeal Nos. 76618,76619 & 76556/16 - Order No. F/O-77788-90/2017 - Dated:- 10-11-2017 - Mrs. Archana Wadhwa, Hon ble Judicial Member Shri A. K. Das, Advocate for the Appellant Shri S. N. Mitra, Asstt.Commr. ( A. R. ) for the Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f import of the above said goods. 2. The matter was further investigated and statements of various persons were recorded. M/s Agritrade India Services Pvt. Ltd. appeared at the SRI Section, Customs House, Kolkata and submitted documents regarding the above mentioned two detained barges along with the letter dated 22.05.2014 wherein they had mentioned that they appointed M/s Sohom Shipping Pvt. Ltd. as their Stevedore for discharging of goods from Vessel to barge at Sagar/Diamond Harbour anchorage and carrying the said goods to Kolkata Port K.P.D berth. That the goods imported by them are duty free. Moreover they stated that M/s Sohom Shipping Pvt. Ltd. at Sagar loaded the barges namely. M.V. Jyeshtharaj M.V.Pashyanti at Sagar Anchorage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of various persons, Revenue was of the view that the importers have used the barges without observing the Customs formalities, such as, amendment and inclusion of name of barges in question in the overside discharge guarantee. Accordingly, proceedings were initiated resulting in passing the present impugned orders. 5. For better appreciation, the findings adopted by the Commissioner for confiscation of goods as also barges and for imposition of penalty, the relevant Paragraphs are reproduced below : I find that the importer M/s Agritrade India Services Pvt. Ltd. had filed the overside discharge guarantee no.56 (o/s) dated 16.05.2014 for unloading 10000 MT of Canadian Whole Yellow Peas over-side at Sagar Road/Diamond Harbour Anch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Now, it is to be determined whether failure to complying with Section 34 of the Customs Act, 1962 in unloading the said cargo would render the same liable to confiscation in terms of Section 111 (h) of Customs Act, 1962. 6. From the above, it seen that no duty was liable on the imported Yellow Peas and the only reason for the Commissioner to confiscate the goods and to impose penalty, is a procedural lapse by the appellant as also by the CHA inasmuch as the barges on which the goods were un-loaded were not brought to the notice of the Customs Officers by including their names in the over-side discharge guarantee filed by them. The appellants have given reasonable explanation that on account of wheather condition and to avoid further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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