PRATIBHA SYNTEX LTD. Vs. COMMISSIONER OF CUS. (EXPORT)

JUDGEMENT

(1.) THE appeal is directed against Order -in -Original No. 55/2011 -12, dated 7 -12 -2011 passed by Commissioner of Customs (Export), Nhava Sheva, wherein a penalty of Rs. 2.50 lakhs was imposed on the appellant, M/s. Pratibha Syntex Ltd. under Section 114(iii) of the Customs Act, 1962. The facts of the case is that an export consignment was loaded on the vessel namely, MV Emirates Liberty Voy 711W and the vessel was sailed on 19 -3 -2007 while the Let Export Order (LEO) pertaining to the said consignment was generated on 20 -3 -2007. A show cause notice, dated 9 -8 -2010 was issued wherein it was proposed to confiscate the export consignment under Section 113(g) of the Customs Act, 1962. Penalties were proposed on M/s. Pratibha Syntex Ltd. and M/s. Shaan's Cargo (P) Ltd. under Section 114(iii) of the Customs Act, 1962 for the alleged violation of Section 40(a) of the Customs Act, 1962 inasmuch as the goods were loaded in the vessel; thereafter, the vessel was sailed on 19 -3 -2007, that is prior to issue of LEO that is on 20 -3 -2007. In the adjudication, the learned Commissioner confiscated the consignment but since the goods were not available, no redemption fine was imposed. A penalty of Rs. 2.50 lakhs on M/s. Pratibha Syntex Ltd., Rs. 3.50 lakhs on M/s. Zim Integrated Shipping Services India (P) Ltd. and Rs. 3.00 lakhs on M/s. Shaan's Cargo (P) Ltd. were imposed under Section 114(iii) of the Customs Act, 1962. Therefore, the appellant M/s. Pratibha Syntex Ltd., is before me.

(2.) SHRI Ashok Jain, Vice President (Commercial) on behalf of the appellant appeared and submits that as regards the mistake of late issuance of LEO for the loading and sailing of vessel one day prior to LEO is on the part of the shipping line. They have followed the statutory provisions and procedure laid down, such as stuffed the container in their factory and cleared to the port of Customs for further export clearance. They are not involved as which date the vessel is loaded and sailed from the Customs port. He also submits that whatever mistake has occurred is not as per their instructions either to CHA or to Shipping line. Therefore, the appellant is not liable for any penalty for any offence which is not committed by them. He also submits that either in the show cause notice or in the impugned order there is no evidence adduced regarding their involvement in the violation of any provision. He relied upon the decision of this Tribunal in the case of Emirates Shipping Agencies (I) Pvt. Ltd. v. CC (Export), Nhava Sheva - : 2009 (243) E.L.T. 689 (Tri. -Mumbai) and in the case of Mohini Organics Pvt. Ltd. v. CC (Export), Nhava Sheva - : 2009 (240) E.L.T. 589 (Tri. -Mumbai). In view of the submissions and grounds of appeal made by the appellant, he prayed to set aside the impugned order and allow the appeal.

(3.) I have carefully considered the submissions made by both the sides and perused the records.