M/S Hyundai Merchant Marine (I) Pvt. Ltd vs Cc (Import) Nhavasheva

IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV

APPEAL NO. C/86037/14 (Arising out of Order-in-Appeal No. 526 (Imp-noting)/2014 (JNCH)/Imp-491 dated 27.02.2014 passed by the Commissioner of Customs (Appeals), Mumbai-II.)

For approval and signature: Honble Shri P.S. Pruthi, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities? =====================================================

M/s Hyundai Merchant Marine (I) Pvt. Ltd.

: Appellant Versus

CC (Import) Nhavasheva : Respondent

Appearance Shri S.N. Kantawala, Advocate : For Appellant Shri Chatru Singh, Asst. Commr. (A.R.) : For Respondent

CORAM: HONBLE SHRI P.S. PRUTHI, MEMBER (TECHNICAL) Date of Hearing : 30.01.2015 Date of Decision: 30.01.2015

ORDER NO.......................................................

Per: P.S. Pruthi:

The appellant is in appeal against Order-in-Appeal passed by the Commissioner (Appeals) in which he reduced the penalty imposed from Rs. 1,00,000/- to Rs. 50,000/-. The facts are that the appellant is a Shipping agency. While agreeing to the request of the CHA to transport the import containers to a particular CFS, they demanded a security deposit from the CHA/importer. The authorities have taken recourse to Facility Notice No. 69/2011 issued by the Commissioner of Customs which requires CHA to intimate the shipping line/agents about their option of the destination CFS, atleast 72 hours prior to the arrival of the vessel and imposed penalty under Section 117 of the Customs Act for contravention of the Handling of Cargo in Customs Areas Regulations, 2009 by violation of the Facility Notice.

2. The learned Counsel relies on a judgement of the Tribunal in the case of CMA CGM Agencies (I) P. Ltd. Vs. Commissioner of Customs (Import), Nhavasheva  2014 (309) ELT 584 (Tri.- Mumbai) to justify that penalty is not imposable.

3. The learned AR reiterates the findings of the Commissioner.

4. I find that the case is primarily a dispute between two private parties. I have seen the Regulations (supra). The Regulation 5(5) requires the Shipping Agency to comply with Rules, Regulations, Notifications and Orders. The Facility Notice is not an order issued under the provisions of the Customs Act. It is reproduced below:

All Shipping Lines/Steamer Agents will be required to compulsorily indicate in the IGM against each line, the name code of the Container Freight Station (the name code will be as per Facility Notice No. 45/2011 dated 29.3.2011), opted for and intimated by the importers/CHAs for delivery of their imported cargo. For this purpose, the importers/CHAs are advised to intimate the shipping line/agents about their option of the destination CFS, atleast 72 hours prior to the arrival of the vessel (Entry inward). Where intimation regarding the destination CFS is not received from the importers/CHAs, prior to 72 hours of the arrival of the vessel (entry inward), the Shipping Lines/Steamer Agents may declare the name of any one Container Freight Station (in the IGM), to where all such unlisted containers can be transported for delivery and inform such CFS accordingly.

Facility Notice is only issued to facilitate and regulate the movement of containers between the port and CFS. It streamlines the movement of containers. The facility notice cannot and does not bind the shipping line to move the containers to a particular CFS at the behest of the CHA.

6. I am in agreement with the Tribunals judgement (supra). I find no basis for levy of penalty.

5. Appeal is allowed and the impugned order is set aside.

(Dictated and pronounced in open Court)

(P.S. Pruthi)

Member (Technical)

Sp

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