Case Law Details
Samudera Shipping Line (India) Pvt. Ltd. Vs Commissioner of Customs (Port) (CESTAT Kolkata)
LEO would have signed by customs before export: CESTAT deleted penalty u/s 114
Appellant is acting as a steamer agent carrying out import and export activities on behalf of various clients. It was the case of the department that appellant had not followed proper procedures and had exported goods for which the Let Export Order (LEO) (final step required to export goods out of India) had been cancelled. A penalty of Rs. 2,00,000/- u/s 114 of the Customs Act was imposed. Appeal preferred by the assessee was dismissed.
It was argued by the appellant that the exporter had asked them to cancel the first set of documents and wanted to export the same through another shipping line. Appellant informed the exporter after 21 days that it was able to carry the container exported by them through same ship. Documentation was completed but it was informed by the exporter that they were planning to cancel the exports, and exporter did not inform any further. After going through the website of the customs which showed details of the consignment as “ready for shipment”, it was presumed by appellant presumed that there was no bar for loading the consignment in the concerned ship and accordingly, they loaded the same. Adjudicating authority has recorded in the order that it has allowed the regularization of shipping bill. Actual export had taken, and even foreign remittance has been received. On the other hand, it was argued by revenue that appellant is liable to penalized u/s 114 as it loaded the consignment on the ship which despite the fact that LEO was cancelled by the Customs authorities.
After considering the submission, CESTAT have held that appellant has loaded the consignment after going through the website details with “ready for shipment” remark. Receipt of foreign remittance is not disputed. Even if the appellant had loaded the consignment without proper documents, the final export could not have taken place, unless the LEO is signed by the concerned officials. The fact that the consignment was finally exported shows that at some point or the other, the Customs Officials would have signed the LEO allowing the consignment to be exported out of India.
Finally CESTAT held that appellant has not contravened any provision of the Customs Act. Penalty of Rs. 2,00,000/- imposed u/s 114 of the Customs Act was deleted.
FULL TEXT OF THE CESTAT KOLKATA ORDER
The facts of the case are that the appellant is acting as a steamer agent carrying out import and export activities on behalf of various clients. On the ground that the appellant had not followed proper procedures and had exported goods for which the Let Export Order (LEO) had been cancelled, it was alleged by the Revenue that the appellant had contravened the provisions of the Customs Act, 1962.
2. After due process, a penalty of Rs.2,00,000/- (Rupees Two Lakhs only) under Section 114 of the Customs Act, 1962 was imposed on them vide the Order-in-Original No. Kol/Cus/JC/90/Export/2019 dated 27.09.2019.
2.1 Being aggrieved, the appellant had filed an appeal before the Ld. Commissioner (Appeals) who has dismissed the same vide the impugned order.
3. Being aggrieved, the appellant is before the
4. The Ld. Counsel appearing on behalf of the appellant submits that the exporter had asked them to cancel the first set of documents and wanted to export the same through another shipping line; the appellant, took up this work and subsequently informed them that after 21 days, the same ship would be able to carry the container exported by the exporter. Once again, one more set of documents were prepared. It is pointed out that just before the same was to be loaded, the exporter-CHA informed the appellant that they were planning to cancel the exports; the appellant did not get any further information from the exporter-CHA. He submits that on the other hand, after finding that the website of the Customs showed the details of the container No. TTNU8432288 as “ready for shipment”, the appellant presumed that there was no bar for loading the consignment in the concerned ship and accordingly, they loaded the same.
4.1 The Ld. Counsel for the appellant has further taken us through the Order-in-Original dated 27.09.2019 wherein, at paragraph 15, the ld. adjudicating authority has stated that “export remittance has been received at the bank against the above export” and has allowed regularization of the said shipping bill. He submits that this shows that the actual export had taken place and even the foreign remittance has been received and thus, contends that no specific case has been made out against the appellant.
4.2 Therefore, it is prayed that the present appeal be allowed.
5. The Ld. Authorized Representative of the Revenue submits that though the LEO was cancelled by the Customs authorities, still the appellant had loaded the consignment on the ship, because of which they are liable to be penalized under Section 114 of the Customs Act, 1962. Accordingly, he justifies the penalty imposed on the appellant.
6. Heard both sides and perused the appeal papers.
7. We find that in the Order-in-Original dated 27.09.2019, the ld. adjudicating authority has held that the export remittance had been received against the exported Further, as per the website details provided by the appellant, it is seen that at Serial Number 22, for the container in question (viz. Container No. TTNU8432288), it is mentioned as “ready for shipment”. The appellant has shown their bona fides about initial cancellation of the documents and also issuance of no-objection certificate to the exporter-CHA. Subsequently, only after finding the website details with the “ready for shipment” remark, they have loaded the consignment.
7.1 It has also been contended by the appellant that it is not the case of the Department that the export had not taken place or that the remittance had not been received. We find that without the clearance of the Customs Officials, even if the appellant had loaded the consignment without proper documents, the final export could not have taken place, unless the LEO is signed by the concerned officials. The fact that the consignment was finally exported shows that at some point or the other, the Customs Officials would have signed the LEO allowing the consignment to be exported out of India. It is also not disputed that the remittance has not been received by the exporter.
8. In such a case, we do not find that the appellant has contravened any of the provisions of the Customs Act, 1962, as alleged.
9. Consequently, we set aside the impugned order and allow the appeal with consequential relief, if any, as per law.
(Dictated and pronounced in the open court)
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