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TMI Blog2019 (8) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty' is also a rate of 'Duty' and hence the goods leviable at 'NIL' rate of 'Duty' also comes under the category of dutiable goods? (ii) Whether the learned Tribunal failed in appreciating that failure to comply with the specific conditions for unloading cargo as envisaged under Section 34 and 35 of the Customs Act, 1962 would render the cargo liable for confiscation and thereby erred in holding the confiscation of the imported goods or the barges and imposition of penalty upon the respondents as not justified on the ground that no duty liability was involved? Brief facts involved in this case as appears on perusal of relevant records are narrated hereunder. The Appellant M/s. Agritrade India Services Pvt. Ltd. had filed the over-side 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 Anchorage, wherein they had guaranteed that the said goods would be discharged in presence of Preventive Officer and under the Boat Note the said goods would be escorted to its destination by Preventive Officer. However, in the instant case none of the said procedures was observed and names of the barg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Tribunal which allowed the appeals of the Assessee and set aside the aforesaid order of penalty and confiscation of goods and barges by holding that the penalty was not justified mainly on the ground that even though there were violation of Section 34 and 35 of the Customs Act the same were mere violation of procedural condition and condoned the said violation on the ground that the goods in question were not "Dutiable". Customs authorities/appellants aggrieved by the aforesaid order of the Tribunal dated 10th November, 2017 filed the instant appeals challenging the same by contending that 'NIL' rate of 'Duty' comes under the category of "Dutiable" and further contending that even if the goods in question is not "Dutiable", it cannot get immunity from confiscation and penalty under Section 111 and 112 of the Customs Act in case of violation of Section 34 and 35 of the said Act. Learned counsel appearing for the revenue/Appellants has relied upon the following decisions in support of its contention that exemption or 'NIL' duty of goods does not cease to be a "Dutiable goods" and 'NIL' rate of 'Duty' is also a 'Duty': (i) Collector of C. Ex., Hyderabad -vs- Vazir Sultan Toab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and on perusal of record issues which require adjudication in these appeals are as follows; (i) Whether, goods leviable at 'NIL' rate of duty comes within the definition of "Dutiable goods" under Section 2 (14) of the Customs Act, 1962? (ii) Whether goods not chargeable to duty gets immunity from compliance of the statutory obligation under Section 34 and 35 of the Customs Act, 1962 and from penal action in consequences thereof under Section 111 and 112 of the said Act? Before answering these questions it would be appropriate to consider the following Sections under Customs Act, 1962 : "2............................................... (14) "dutiable goods" means any goods which are chargeable to duty and on which duty has not been paid; (15) "duty" means a duty of customs leviable under this Act;" "34............................................ Imported goods shall not be unloaded from, and export goods shall not be loaded on, any conveyance except under the supervision of the proper officer; Provided that the Board may, by notification in the Official Gazette, give general permission and the proper officer may in any particular case give special permis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in support of its contention that goods not chargeable to duty comes within the term "Dutiable goods" are all under Central Excise Act, Excise and Salt Act and rules defining the scope of "excisable goods" and none of the decisions are on the definition under Section 2 (14) of the Customs Act. In view of the aforesaid discussion, the first question is directly covered in favour of the respondent importer by the decision of the Apex Court in case of Associated Cement Companies Ltd. (supra). Now in answering the second issue relating to violation of Section 34 & 35 of the Customs Act, 1962 and penal consequence thereof, one very important aspect of admitted factual position which requires consideration is that the Tribunal itself in its order has recorded that there was violation of the provisions of Customs Act in this case as follows: "......... the barges other than the one whose names were included in the guarantee declaration, were used. Though the said activity of the appellant, is in violation of the procedural condition envisaged in the Customs Act, 1962, but keeping in view, that no duty liability was involved and appreciating the reasons given by the assessee, I find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nizamuddin, J. in the judgment he proposes to deliver. However, I would like to add a few observations of my own. Here, issuance of a formal show cause notice was waived by the respondent. The charges against them must have been explained to them orally and reduced to writing in the adjudication order. What is important is the substance of the allegation or charge. If the charge points to any violation of the law it should narrate the facts from which this violation can be inferred. Furthermore, the law violated must be stated. The charge read as a whole should not leave any doubt in the mind of an ordinary reasonable person engaged in or having knowledge of the activities or offences which are the subject matter of the charge, about the nature and scope thereof. When the alleged violation of the law has been sufficiently identified while narrating the facts and tabulating the charge, misquotation of a particular subsection, by inadvertence, in the show cause or in the adjudication order does not vitiate the charge or change the nature of the proceedings. In this case the adjudication order clearly mentioned the allegations against the respondent that they were in breach of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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