Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand *  DGFT extends export obligation period for advance authorisations & EPCG authorisations till August 31 *  The e-way bill system has been updated in 2026 with revised validity periods and enhanced verification mechanisms *  MSME iron and steel exporters get interest subvention relief extension
Subject News *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court *  ANDHRA PRADESH HIGH COURT QUASHES MULTI-YEAR GST ASSESSMENT *  GST Registration Cancellation Order Must Be A Speaking Order: Gauhati High Court.  

Comments

Print   |    |  Comment

PJ/Case Laws/ 2012-13/ 1189

Whether the loading of goods onto ship without issuance of let export order are liable of confiscation?
Case:-M/S SAURASHTRA CEMENT LTD, SHRI K J V SHARMA, SHRI GULAM MOHAMMED UMAR BHAYA, SHRI V R SHIAL, SHRI B H WAGH V/S CC, JAMNAGAR
 
Citation:-2012-TIOL-924-CESTAT-AHM
 

Issue:- Whether the loading of goods onto ship without issuance of let export order are liable of confiscation?

Brief Facts: - Appellant M/s. Saurashtra Cement Ltd. (SCL) is engaged in the manufacture of cement and cement clinker and filed a shipping bill on 21.9.10 for export of 600 MT of cement under DEPB for export to IRRA. The shipping bill was assessed on 22.9.10 and the loading was started under the supervisor of SCL and the other persons concerned. By the time 70 MT of cement had been loaded, the officers of Customs came and stopped the loading on the ground that let export order had not been given and therefore loading was improper. On this ground proceedings were proposed to be initiated. But the appellant company and others concerned waived issue of show cause notice and thereafter impugned order has been passed imposing penalty of Rs.35,000/- on SCL, Rs.20,000/- on Shri K.J.V. Sharma, General Manager of SCL, Rs.15,000/- on Shri B.H. Wagh, supervisor of SCL, penalty of Rs.20,000/- on Shri V.R. Shial, shipping agent of shipping line and Rs.10,000/- on the tindal of the vessel. Further the 70 MT of cement valued at Rs. 1, 64,500/- was confiscated and redemption fine of Rs.50,000/- has been imposed and the vessel has been confiscated and redemption fine of Rs.1,25,000/- has been imposed.

Reasoning of Judgment: - The CESTAT held that according to the definition of smuggling as per the provisions of Customs Act, once the goods are loaded without let export order in the ship or vessel, goods are considered as smuggled and are liable to confiscation. Once goods are held liable to confiscation, penalties on the persons concerned also become imposable and further the goods themselves also become liable to confiscation. As regards the vessel the provisions of Section 115(2) provide that vessel becomes liable to confiscation only if the vessel is used for smuggling of the goods with the knowledge of the owner and if the owner is able to show that he had no knowledge or intention to smuggle, a penalty on the owner and confiscation of the vessel is not called for. In this case no doubt around 10% of the goods was loaded in the vessel but even the Commissioner himself has accepted that what happened appears to be bonafide mistake and therefore he is taking a lenient view. Once it is accepted that what has happened is a bonafide mistake, it cannot be said that the vessel was used in smuggling with the knowledge of the owner. Under these circumstances, the vessel cannot be said to be liable to confiscation and therefore the confiscation of the vessel is not sustainable and accordingly set aside.

As regards the employees of the appellant it cannot be said that all of them were concerned with export of the goods excepting the supervisor who was in the port and who was an employee of the company representing the company. As an employee he was performing the duty and probably was extremely eager to ensure that the goods are loaded as early as possible and no mala fide intention has been attributed by the Commissioner. Therefore once the penalty is imposed on the company, it may not be appropriate to impose penalty on the employee also. Therefore the supervisor of the company Shri B.H. Wagh and the General Manager are not liable to penalty and accordingly the penalty imposed on them is set aside.

As regards the company, they have taken a view that no penalty is imposable on the supervisor and it was on behalf of the company that the goods were loaded on the vessel by following improper procedure and having rendered the goods liable to confiscation penalty is leviable.

As regards the tindal of the vessel, a tindal of the vessel is supposed to know the basic provisions of law and he cannot say he was ignorant and therefore allowed the loading of the goods without a let export order. This is a most important function of the master of the vessel and once he allows the goods to be loaded and renders them liable to confiscation he would also liable to penalty. Even though a view has been taken that the vessel is not liable to confiscation, the agent of the shipping line cannot be absolved of any omissions in this case. The agent of the shipping line is responsible for issue of bills of lading of the goods and it is his responsibility to ensure that the goods are loaded after proper procedures are followed. That being the position, the agent of the shipping line is liable to penalty.

They held that the Commissioner has been quite harsh in deciding the quantum of penalty. Once it is concluded that omission is procedural in nature, it should be nominal and only to ensure that such mistakes do not happen again. Therefore in this case penalty also has to be in nominal terms just to ensure that legal provisions are not ignored even by mistake. Accordingly the redemption fine on the cement is reduced from Rs.50,000/- to Rs.10,000/-. The penalty of Rs.35,000/- imposed on M/s SCL is reduced to Rs.10,000/-. Penalty on Shri V.R. Shial, the agent of the shipping line is reduced to Rs.5,000/-. Penalty on the tindal is reduced to Rs.5,000/-.

Decision: - Appeal disposed off.

 
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com