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TMI Blog2024 (4) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the above statutory provisions vis- -vis the activities undertaken by the appellants as the warehouse licensee, it is found that none of the said provisions have been contravened or violated by the appellants inasmuch as in respect of all the B/Es listed above, the activities were carried out with the approval and necessary permission given by the department as well as under supervision of Customs. In view of the statutory provisions regarding the warehoused goods and the instructions issued by the CBEC, it is amply clear that movement of goods within the bonded warehouse is permissible, subject to the condition that such activities should be within the knowledge of the department and necessary approval for such activities should be obtained by the warehouse licensee - the appellants have complied with such statutory provisions in carrying out the activities within the warehousing station(s). Therefore, it cannot be said that the goods dealt with by the appellants are liable for confiscation and accordingly, the appellants cannot be exposed to penal consequences provided under the statute. The impugned order dated 08.01.2024 has invoked the provisions of Section 111(h) and 111 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order passed for revocation of suspension of warehousing operation shall also not be sustained - the impugned order is set aside - appeal allowed in favour of appellants. - MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND MR. M.M. PARTHIBAN, MEMBER (TECHNICAL) Shri Anurag Mishra, Ms. Nisha Bineesh, Ms. Bharati Indulkar, Advocates Ms. Sanya, Chartered Accountant for the Appellant Shri Adeeb Pathan, Authorized Representative for the Respondent ORDER Briefly stated, the facts of the case are that the appellants herein were issued with a Public Bonded Warehousing License by the jurisdictional Customs authorities at Jawaharlal Nehru Custom House (JNCH), Nhava Sheva. In total, there were 79 public bonded storage tanks located in the premises of the said warehouse. The said license was issued to the appellants in terms of Section 57 of the Customs Act, 1962. The license has provided various conditions to be fulfilled/observed by the license holder, the appellants herein. On 01.02.2023, a team of officers from the Import Bond section, JNCH visited the warehouse of the appellants and upon verification of the warehouse and various records, they observed that non-bonded goods had been store ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962. ii. I hold the goods covered under 02 Warehouse Bill of Entries i.e. 3786599 and 3787816 both dated 01/05/2021, valued at Rs. 3,58,84,240/- (Rs. Three crores, fifty-eight lakhs, eightyfour thousand, Two Hundred Forty only) and having duty involvement of Rs. 69,81,438/-(Rupees Sixty-nine Lakhs, Eighty-one Thousand, Four hundred Thirty-Eight only), liable for confiscation under Section 111(h) of the Customs Act, 1962, for storing the goods imported by the Licensee M/s. Ganesh Benzoplast Ltd. in their IEC and storing the same in their own public bonded warehouse. As the goods are not available for confiscation, I impose a redemption fine of Rs. 40,00,000/- (Rs. Forty lakhs only) in respect of these goods for their redemption under Section 125 of the Customs Act, 1962. I also impose a penalty of Rs. 3,50,000/- (Rs. Three lakhs fifty thousand only) on the Licensee M/s. Ganesh Benzoplast Ltd. (NSA1U116) under Section 112 a(ii) and 112 b(ii) of the Customs Act, 1962. iii. I impose a penalty of Rs. 4,00,000/- (Four lakhs only) on the Licensee M/s. Ganesh Benzoplast Ltd. (NSA1U116) under Section 117 of the Customs Act, 1962 read with Regulation 12 of Warehouse (Custody a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Es both dated 19.06.2023, the learned Advocate submitted due to operational reasons, the goods were stored in the non-bonded tanks and the importer had also paid the entire duty on the goods stored in the non-bonded tanks. As regards the B/E dated 22.09.2021, learned Advocate submitted that the department vide letter dated 17.09.2021 had accorded permission for discharging the goods i.e., refined palm oil. He further submitted that since the appropriate duty liability on the goods had already been discharged, there is no loss of revenue to the government exchequer and the appellants cannot be said to have contravened the provisions contained in the statute. With regard to remaining 31 B/Es, learned Advocate submitted that the goods covered thereunder cannot be confiscated inasmuch as requisite discharge permission was granted by the department prior to discharge of imported goods from the vessels. With regard to two B/Es both dated 01.05.2021, Learned Advocate submitted that the goods covered thereunder were discharged from the vessel through high pressured pipe lines, which cannot be stopped mid-way during the process of discharge to avoid accidents and as such the same were store ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storage of bonded goods in non-bonded tanks, it cannot be said that the conditions under the warehousing license were violated by the appellants. Sample copy of discharge permission with regard to the B/Es No. 5541098 dated 22.09.2021 (appearing at Sl. No.1 above) is extracted herein below: 6.2 In case of the remaining two B/Es listed at Sl. No. 4 and 5 above, we find that the bonded goods as per the said B/Es were stored in the licensed bonded tanks upon obtaining due permission from the department. The appellants have pleaded that at the time of discharge of the goods, there was some issues with valve of the tanks which was not operating and that at the advice of the appellants, the importer had paid the customs duty. Payment of duty in respect of those two B/Es were not disputed by the department. We also find that payment of duty through the challans was acknowledged by the department and out of charge was issued for removal of the goods from warehouse. 6.3 In respect of 31 B/Es, where the bonded goods were stored in non-bonded tanks, we have perused the said B/Es and the respective permission letters issued by the department, in permitting discharge of imported consignments f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivities were undertaken thereafter. 6.5 With regard to B/Es No. 3786599 and 3787816 both dated 01.05.2021, we find that the submissions made by the appellants are acceptable that the goods covered thereunder were discharged from the vessel through high pressure pipe lines, which could not be stopped mid- way during the process of discharge to avoid accidents; and that when the consignments were discharged from the vessel, a quantity of 262.983 MTs of Mixed Xylene and 314.061 MTS of Toluene were stored in the public bonded tanks. On perusal of the case records, we find that the importer in respect of the goods under the said two B/Es were appellants themselves and prior to discharge of the imported goods from the vessel, the permission under the cover of letter dated 30.04.2021 were obtained from the Customs department. The said permission letter was issued on the condition that the discharge activity should be done under the Customs preventive supervision. Hence, we are of the view that there is no contraventions of the provisions under the statute. 7. The provisions under the Customs statute, relevant for consideration of the present dispute are quoted herein below: Unloading an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der supervision of Customs. 8.2 Section 33 ibid mandates that unloading and loading of goods only should be done at the approved places with the permission of the proper officer of Customs. Interpreting the said statutory provisions, concerning import of liquid bulk cargo and storage of same in bonded warehouse, the Central Board of Excise Customs (CBEC) have issued the instructions from File F. No. 473/19/2009-LC dated 09.05.2011 to the field formations in the following manner: 2.3 A harmonious reading of the above provisions indicates that imported goods may be unloaded only in a Customs area which is located in a Customs Station or a proper place approved under Section 8 in a notified Customs port, airport etc. 3. However, as per Section 33, Except with the permission of the proper officer, no imported goods shall be unloaded, and no export goods shall be loaded, at any place other than a place approved under clause (a) of Section 8 for the unloading or loading of such goods . Thus, with the prior permission of the proper officer, imported goods can be unloaded at a place other than a place approved under clause (a) of section 8 for the unloading or loading of such goods. 4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. It is a fact on record that the bulk liquid cargo dealt with by the appellants are not prohibited for importation and that the appellants had obtained due permission from the customs department for carrying out the activities within the warehousing premises, which is evident from the above tables, mentioning the date of permissions issued by the department including the specific tank numbers for which such permissions were being issued by them. Therefore, we are of the opinion that the provisions of Section 111(j) ibid are not attracted for confiscation of goods in the circumstances of the present case. 10. Since there is no improper importation of goods and more specifically, the goods are not liable for confiscation as per the provisions under Section 111 ibid, in our considered view the provisions of Section 112 ibid shall not be attracted for imposition of penalty on the appellants. Further, the provisions of Section 114AA ibid cannot also be invoked in the present case, inasmuch as there is no mis-declaration, nor any forged documents w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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