Nizamuddin, J. - (1.) These two appeals filed by the appellants under Section 130 of the Customs Act, 1962 arise out of a common order dated 10th November, 2007 passed by the Custom, Excise and Service Tax Appellate Tribunal, Kolkata in CUSTA Appeal Nos. 23 of 2018 and 28 of 2018. Both are taken up together in view of similarity in facts and issues involved therein. On the following substantial questions of law these appeals were admitted by this Court by order dated15th January, 2019: (i) Whether the learned Tribunal erred in observing that no duty liability was involved and failed to appreciate that NIL rate of Duty is also a rate of Duty and hence the goods leviable at NIL rate of Duty also comes under the category of dutiable goods? (ii) Whether the learned Tribunal failed in appreciating that failure to comply with the specific conditions for unloading cargo as envisaged under Section 34 and 35 of the Customs Act, 1962 would render the cargo liable for confiscation and thereby erred in holding the confiscation of the imported goods or the barges and imposition of penalty upon the respondents as not justified on the ground that no duty liability was involved?
(2.) Brief facts involved in this case as appears on perusal of relevant records are narrated hereunder.
(3.) The Appellant M/s. Agritrade India Services Pvt. Ltd. had filed the over-side discharge guarantee no. 56 (o/s) dated 16.05.2014 for unloading 10000 MT of Canadian Whole Yellow Peas over-side at Sagar Road/ Diamond Harbour Anchorage, wherein they had guaranteed that the said goods would be discharged in presence of Preventive Officer and under the Boat Note the said goods would be escorted to its destination by Preventive Officer. However, in the instant case none of the said procedures was observed and names of the barges namely M.V. Jyestharaj (IMO - 9664598) and M.V. Pashyanti (IMO- 9664653) in which the goods namely 4460 MT Canadian Whole Yellow Peas were loaded, were not included in the said over-side discharge guarantee filed by the appellant M/s. Agritrade India Services Pvt. Ltd. The Adjudicating authority held that the impugned imported 4460 M.T. of Canadian Whole Yellow Peas falling under CTH 07131000 were dutiable goods and, as such, were liable to confiscation under Section 111 (h) of the Customs Act, 1962. It did not accept the importer s plea of bad weather, coincided with poor communication, which compelled them to replace the barges that were not included in the over-side discharge guarantee. It was further held that this act of omission on their part has rendered themselves liable for penal action under Section 112 (a) of the Customs Act, 1962.;