ESSAR OIL LTD. Vs. COMMISSIONER OF CUSTOMS, JAMNAGAR

JUDGEMENT

(1.) THIS appeal is directed against Order -in -Original No. 03/Commissioner/2011, dated 17 -6 -2011.

(2.) THE relevant facts that arise for consideration are that appellant had filed Bill of Entry No. F -43, dated 21 -6 -2010 for clearance of certain capital goods imported by them per vessel MV Combi Dock I for their refinery expansion project at Vadinar port. There were total 64 packages of different equipments and materials in the said consignment. Out of the said 64 packages, 40 packages were produced for examination before the Superintendent of Customs, Vadinar on 26 -6 -2010 by the appellant. The said goods i.e. 40 packages were examined by the Superintendent of Customs, Vadinar on 26 -6 -2010 and Out of Customs Charge order under Section 47 of Customs Act, 1962 was given. In pursuance of the said order, the appellant removed the said goods from the Customs area to their refinery.

(3.) THE Customs Department on receipt of information that certain imported goods which were not yet examined by the Customs officers were also removed by the appellant, visited the Vadinar port and conducted further enquiry into the matter. On completion of enquiry and investigation, it was noticed that one of the imported item Coker Fractionator was removed from the Customs area without examination and without obtaining any order under Section 47 of Customs Act, 1962. The Customs officers then visited the place where the Coker Fractionator was being transported and detained the same. Show Cause Notice was issued for the purpose of confiscation of such goods and also for imposition of penalty. The appellant herein contested the issue on merit before lower authorities. It was also the claim of the appellant before the adjudicating authority that there is no mala fide as the duty liability under EPCG scheme has been discharged on the entire consignment of 64 packages. The adjudicating authority, after granting personal hearing to the appellant and considering the written submissions made before him, did not agree with the defence put by the appellant. He held against the appellant which is recorded as under : 30. To sum up, I find that though the M/s. Essar Oil Ltd, Vadinar has removed the imported goods viz. Coker Fractionator without producing them same for examination and without obtaining out of customs charge order from the proper officer, but it is also a fact that M/s. Essar Oil Ltd has paid the duty applicable on the said goods at concessional rate under EPCG scheme before removal of the goods. Also, I find that the remaining goods in the Bill of Entry No. F043, dated 21 -6 -2010 imported along with the Coker Fractionator have been produced for examination and cleared after obtaining out of customs charge order. As such, there is no evasion of duty. Only because of the act of omission in not producing the goods viz. Coker Fractionator for examination and removing the same before obtaining out of customs charge order from Customs has rendered the said goods along with the carrier/conveyance liable for confiscation under Section 111(i) and Section 115 of Customs Act, 1962 respectively. Moreover, the goods in question are not even for trading activity or for earning profit out of sales of these goods to the third party. Keeping all these facts into consideration and also the findings discussed in earlier paras, I take lenient view in the matter and pass the following order : -