M/S. Air India, Capt. H.P.S. Vs. Commissioner of Central Excise, - Court Judgment

Excerpt:
1. all the appeals are filed against the same impugned order, therefore, they are being taken up together. the appeals filed by capt.h.p.s. kahlon, capt. a.n. godbole and shri t.d. dogra were filed after the period of expiry of limitation. the applicants filed the applications for condonation of delay on the ground that the impugned order was not served upon them till today and they had come to know about the penalties imposed upon them from their employer i.e. air india. this factual position is not disputed by the revenue. hence the delay in filing the appeals is condoned.2. in the impugned order a penalty of rs. 3 lakhs was imposed on m/s.air india and penalty of rs. 1 lakh each is imposed on capt. h.p.s.kahlon, capt. a.n. godbole and shir t.d. dogra. learned counsel appearing on behalf of the applicants submits that in the impugned order there is no finding that applicants acted in a mala fide way in bringing the consignment from hongkong. he submits that in the impugned order the commissioner of customs gave a specific finding that the importer of goods are genuine and bonafide but the applicants cannot followed the proper procedure. the contention of the applicants is that the goods were lifted from new hongkong air port which came into operation on 1st august, 1998 and air india, present applicant changed their handling agent and due to this confusion the goods were lifted without proper manifest & proper documents. this was duly informed by m/s. air india on the same day. learned counsel relied upon the letter written by duty manager cargo to the assistant commissioner of customs to this effect. he, therefore, prays that the pre-deposit of penalty be waived.3. heard learned sdr who reiterated the finding of the lower authorities. in this case the goods were lifted by air india on 1st august, 1998 form hongkong air port and goods were not accompanied by the legal documents and neither manifested in the cargo manifest of the concerned flight . in reply to the show cause notice the appellant gave an explanation for this fault and this was duly informed to the customs authorities. further, the commissioner in the impugned order gave a specific finding that import of the goods are genuine and bonafide.there is nothing on record to show that appellant acted in a malafide way in bringing the goods from hongkong to india. therefore, prima facie balance of convenience is in favour of the appellant. therefore, pre-deposit of whole of the penalties imposed on the appellant are waived and recovery of the same is stayed during the pendency of the appeal for hearing of appeals. to come up in due course.

Judgment:
1. All the appeals are filed against the same impugned order, therefore, they are being taken up together. The appeals filed by Capt.

H.P.S. Kahlon, Capt. A.N. Godbole and Shri T.D. Dogra were filed after the period of expiry of limitation. The applicants filed the applications for Condonation of Delay on the ground that the impugned order was not served upon them till today and they had come to know about the penalties imposed upon them from their employer i.e. Air India. This factual position is not disputed by the Revenue. Hence the delay in filing the appeals is condoned.

2. In the impugned order a penalty of Rs. 3 lakhs was imposed on M/s.

Air India and penalty of Rs. 1 lakh each is imposed on Capt. H.P.S.Kahlon, Capt. A.N. Godbole and Shir T.D. Dogra. Learned Counsel appearing on behalf of the applicants submits that in the impugned order there is no finding that applicants acted in a mala fide way in bringing the consignment from Hongkong. He submits that in the impugned order the Commissioner of Customs gave a specific finding that the importer of goods are genuine and bonafide but the applicants cannot followed the proper procedure. The contention of the applicants is that the goods were lifted from New Hongkong Air Port which came into operation on 1st August, 1998 and Air India, present applicant changed their handling Agent and due to this confusion the goods were lifted without proper manifest & proper documents. This was duly informed by M/s. Air India on the same day. Learned Counsel relied upon the letter written by Duty Manager Cargo to the Assistant Commissioner of Customs to this effect. He, therefore, prays that the pre-deposit of penalty be waived.

3. Heard learned SDR who reiterated the finding of the lower authorities. In this case the goods were lifted by Air India on 1st August, 1998 form Hongkong Air Port and goods were not accompanied by the legal documents and neither manifested in the Cargo manifest of the concerned flight . In reply to the show cause notice the appellant gave an explanation for this fault and this was duly informed to the Customs authorities. Further, the Commissioner in the impugned order gave a specific finding that import of the goods are genuine and bonafide.

There is nothing on record to show that appellant acted in a malafide way in bringing the goods from Hongkong to India. Therefore, prima facie balance of convenience is in favour of the appellant. Therefore, pre-deposit of whole of the penalties imposed on the appellant are waived and recovery of the same is stayed during the pendency of the appeal for hearing of appeals. To come up in due course.