ORDER
Archana Wadhwa, Member (J)
1. After admitting the appeal and allowing the stay petition, I proceed to decide the appeal itself inasmuch a short issue is involved.
2. Appellant is a CHA and has been penalized with personal penalty of Rs. 15,000/- on the finding that he has failed to perform his duties as per CHA Regulations, 2004 and has contravened Regulation 13(d) of CHA Regulations, 2004.
3. The allegation against the appellant is that he did not inform the Custom Officers about the non-examination of the two containers and allowed the said containers to be loaded in the ship without let export orders by the Customs. On going through Para 2 of the impugned order it is seen that it is the CHA, who informed the department about non-examination of the two containers and the fact of loading the same in the ship. It is also seen that the ship was subsequently called back, containers examined and nothing objectionable was found. While concluding the appellant liable to penal action, Commissioner has observed as under in Para 28 of his impugned orders:
I find that at the time of registration of both shipping bills pertaining to said two containers, there was instruction to open the containers for examination. Both the shipping bills were presented for registration well before the sailing date of the vessel M. V. Rio Voyage 11. The CHA i.e. M/s. Safe Clearing and Forwarding Ltd. have stated that they had informed the concerned steamer agents i.e. M/s. Sea Bridge Maritime Agency Pvt. Ltd. and M/s. Triton Logistics and Maritime Pvt. Ltd. and also the exporters forwarding agent, M/s. Ocean Cargolink Pvt. Ltd., regarding the instruction requiring examination of the said containers. Mr. Rajshekhar, the Vice-President of M/s. United Phosphorous Ltd., the exporter, has stated that from the date of dispatch of the container, after being stuffed and self-sealed at their factory premises i.e. from 12-10-2004 till 26-10-2004, there was no communication from the CHA relating to the above export and that only after receiving information from the CHA on 26-10-2004, they wrote a letter to the customs explaining the facts of the case and requested for condonation of omission. However, Mr. Sanjay H. Dattani of M/s. Safe Clearing & Forwarding Ltd. stated in his statement that on 19-10-2004 they informed M/s. United Phosphorous Ltd. to get NOC from M/s. Sea Bridge Maritime Agency Pvt. Ltd. for examination of the container. Further, in his statement dated 27-10-2005, Shri Venugopal Nair, Director of M/s. Ocean Cargo Link Pvt. Ltd., has stated inter alia that on 20-10-2004 at 23.50 hrs. they received fax message from M/s. Safe Clearing & Forwarding Pvt. Ltd., that the said fax was addressed to M/s. Sea Bridge Maritime Services Pvt. Ltd. and was dated 16-10-2004; that the contents of the fax was to issue a NOC to open the said Container No. HDMU2947649 for customs examination and the said fax message was on the letterhead of M/s. United Phosphorus Ltd., that they faxed the same message to M/s. Sea Bridge Maritime Agencies Pvt. Ltd. on 21-10-2004; that on 23-10-2004 they got telephonic message from M/s. Sea Bridge Maritime Agencies Pvt. Ltd. that the said container was already loaded on vessel and the vessel had already sailed.
As is clear from above, the appellant as CHA has taken reasonable precaution and has sent fax message to the shipping company, as admitted by them, for issuing NOC for the said container for custom examination. However, they were informed that the container was already loaded and the vessel have already sailed. In view of the above, I hold that the appellant has taken reasonable precaution to place the container for examination by the customs. Tribunal in the case of Shree Shipping Services v. Commissioner of Customs, Airport, Mumbai has set aside the personal penalty imposed on the clearing agent for allowing the goods to be sailed without let export order by observing that no ground has been made out to impose any penalty on the clearing agent who acted in accordance with law.
4. In view of the foregoing, I find no justifiable reason to impose penalty upon the present CHA. The same is accordingly set aside and appeal allowed with consequential relief. Stay petition also gets disposed off.
(Pronounced in Court)