CENTRAL WAREHOUSING CORPORATION Vs. C.C. (EXPORT)
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
CENTRAL WAREHOUSING CORPORATION
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P.R. Chandrasekharan, Member (T) -
(1.)THE appeal is directed against Order -in -Original No. 04/2013, dated 16 -12 -2013 passed by the Commissioner of Customs (Export), CFS Management, JNCH, Nhava Sheva. Vide the impugned order, the learned adjudicating authority has imposed a penalty of Rs. 1.5 lakhs under Regulation 12(8) of the Handling of Cargo in Customs Area Regulations, 2009 and a further penalty of Rs. 1 lakh under Section 117 of the Customs Act for contravention of Regulations 6(2), 6(1)(k) and 6(1)(q) of the said Regulations read with Section 141(2) of the Customs Act, 1962. Aggrieved of the same, the appellant is before me.
(2.)THE learned Counsel for the appellant submits that the charge against the appellant is that the appellant availed the services of transporters and cargo handlers, security agency, up -keeping and maintenance and also EDI services without obtaining prior permission from the Commissioner of Customs thereby contravening the provisions of Regulation 6(2). The appellant also contravened the provisions of Regulation 6(1)(k) inasmuch as the appellant did not ensure secure transit of the goods from the said Customs area to other Customs area or any other Customs station in accordance with the permission granted by the officer and the containers in which the goods were removed from the appellant's CFS to Kalamboli was misused for smuggling out red sanders. There is also a charge of non -adhering to the provisions of Customs Act and Rules, Notifications and Regulations issued thereunder. Accordingly, a show cause notice dated 29 -7 -2013 was issued and in adjudication thereof the impugned order was passed imposing penalties on the appellant. Hence the appellant is before me.
2.1 The learned Counsel points out that, as per sub -regulation (8) of Regulation 12, if any Customs cargo service provider contravenes any of the provisions of these Regulations or abets such contravention or who fails to comply with the provisions of the Regulations, with which it was his duty to comply, he shall be liable to a penalty to the extent of Rs. 50,000. The maximum penalty, therefore, that can be imposed for violation of the said regulation is Rs. 50,000 and the penalty imposed of Rs. 1.5 lakhs is clearly unsustainable in law. He further submits that imposition of penalty of Rs. 1 lakh under Section 117 of the Customs Act is also not warranted as Section 117 of the Customs Act provides for imposition of penalty only when there is no any other penalty specified elsewhere. Inasmuch as penalty is specified under Regulation 12(8), the question of imposition of penalty under Section 117 would not arise at all. It is also his submission that before engaging the private parties to undertake the various cargo handling activities, they had intimated to the Dy. Commissioner vide letter dated 5 -11 -2009 about their intention to engage the service providers. Therefore, it cannot be said that the department was unaware of the engagement of private agencies by the cargo service provider. In these circumstances, it is his plea that the imposition of penalty is not justifiable and therefore, the order be set aside.
The learned Additional Commissioner (AR), on the other hand, submits that the appellant failed to ensure secure and safe transfer of containers from one CFS to another and in between the container was misused for smuggling of red sanders which is a serious offence. It is also his submission that a penalty of Rs. 50,000 prescribed under Regulation 12(8) is in respect of each of the contravention and not for the whole of the contravention and therefore, penalty of Rs. 50,000 each can be imposed if there are more than one contraventions. Accordingly, he pleads for upholding the impugned order.
(3.)I have carefully considered the submissions made by both the sides. Regulation 12(8) providing for penalty does not say that penalty is imposable on each of the contraventions. It merely says that if the Customs cargo services provider contravenes any of the provisions of the Regulations, he is liable to penalty to the extent of Rs. 50,000/ -. If the intention of the legislature, was to provide for imposition of penalty for each of the contravention, the legislature would have said so specifically. In the absence of any such specification in the provisions, the contention of the Revenue in this regard cannot be accepted and would amount to adding words which the legislature has not done. As per the principles of statutory interpretation, addition or deletion of words to the language employed by the legislature is not permissible. Therefore, imposition of penalty of more than Rs. 50,000 is not permitted under the law.
4.1 As regards the penalty imposed under Section 117, the said provision would apply only if there is no other penalty provided for violations of the provisions of the Handling of Cargo in Customs Area Regulations. Penalty is specified under Regulation 12(8). That being the position, the question of imposition of penalty under Section 117 would not arise at all. Therefore, the penalty imposed under Section 117 is clearly unsustainable in law.
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