JUDGMENT : Md. 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. There is a finding of the Adjudicating authority that the goods namely 4460 MT Canadian Whole Yellow Peas were loaded into barges namely M.V. Jyeshtharaj (IMO - 9664598) and M.V. Pashyanti (IMO- 9664653) by the Setevedore M/s. Sohom Shipping Pvt. Ltd. from the Vessel M.V. Dubai Crown (Import Rot. No. 2084164/14) anchored at Sagar Anchorage whose names were not included in the Overside Discharge Guarantee No. 56 (OS) dated 16.05.2014. Further, 'allow discharge' order was not obtained by the Stevedore from the proper Customs Officer and said two barges were not even escorted by the Customs Officer from their discharge point (Sagar Anchorage Point) to their final destination in the Dock premises. Also no 'Green Boat Note (GBN)' was issued for these two barges in this case. He further held that the said goods were loaded into barges namely M.V. Jyeshtharaj (IMO - 9664598) and M.V. Pashyanti (IMO - 9664653) from the Vessel M.V. Dubai Crown (Import Rot No. 2084164/14) anchored at Sagar Anchorage without preventive supervision and the movement to its final destination was carried out in violation of provisions laid down under Section 34, 35 and 111 (h) of the Customs Act, 1962, and this act of violation has rendered the Stevedore M/s. Sohom Shipping Pvt. Ltd. liable for penal action under Section 112 (a) of the Customs Act, 1962. Challenging the aforesaid order of the Adjudicating authority M/s. Sohom Shipping Pvt. Ltd. and M/s. Agritrade India Services Pvt. Ltd. respondents herein filed respective appeal before the learned Tribunal which allowed the appeals of the Assessee and set aside the aforesaid order of penalty and confiscation of goods and barges by holding that the penalty was not justified mainly on the ground that even though there were violation of Section 34 and 35 of the Customs Act the same were mere violation of procedural condition and condoned the said violation on the ground that the goods in question were not "Dutiable". 4. 4. Customs authorities/appellants aggrieved by the aforesaid order of the Tribunal dated 10th November, 2017 filed the instant appeals challenging the same by contending that 'NIL' rate of 'Duty' comes under the category of "Dutiable" and further contending that even if the goods in question is not "Dutiable", it cannot get immunity from confiscation and penalty under Section 111 and 112 of the Customs Act in case of violation of Section 34 and 35 of the said Act. Learned counsel appearing for the revenue/Appellants has relied upon the following decisions in support of its contention that exemption or 'NIL' duty of goods does not cease to be a "Dutiable goods" and 'NIL' rate of 'Duty' is also a 'Duty': (i) Collector of C. Ex., Hyderabad vs Vazir Sultan Toabacco Co. Ltd. - 1996 (83) E.L.T. 3 (SC) (ii) Hindi Rubber Factory vs Union of India - 1990 (48) E.L.T 363 (P&H) (iii) Karnataka Cement Pipe Factory Industrial Estate vs Superintendent of Central Excise & Anr., 1986 (23) E.L.T 313 (Kar.) Learned counsel appearing for the respondent opposing the appeals of the revenue and supporting the order of the Tribunal has contended that exempted goods not chargeable to 'Duty' are not "Dutiable goods" and does not come within the definition of "Dutiable goods" under Section 2 (14) of the Customs Act and confiscation and penalty under Section 111 and 112 of the said Act in this case was not justifiable since the goods were neither dutiable nor prohibited and further contended that when the adjudicator has dropped the proceeding in this case against CHA, M/s. Ravi Shipping Agency Pvt. Ltd. penalty levied upon the respondents are not justifiable. In support of their contention that the goods which are chargeable to 'Duty' can only come within the definition of "Dutiable goods" under Section 2 (14) of the Customs Act, 1962 and any goods which are not "chargeable to duty" or exempted or 'NIL' Duty do not come within the definition under Section 2 (14) of the said Act Learned counsel for the importers has relied on a decision of the Apex Court in the case of Associated Cement Companies Ltd. vs Commissioner of Customs reported in 2001 (128) E.L.T. 21 (S.C.) paragraph 79 as hereunder: "....... Under the Central Excise Act, 1944 in definition of words "excisable goods" under Section 2 (d), the very specification or inclusion of goods in the First and Second Schedule of the Central Excise Tariff Act would make them excisable goods subject to duty. Under the Customs Act, the provisions seem to be somewhat different. While by virtue of Section 2 (22) all kinds of moveable property would be 'goods' but it is only those goods which would be regarded as 'dutiable goods' under Section 2 (14) which are chargeable to duty and on which duty has not been paid. The expression "chargeable to duty on which duty has not been paid" indicates that goods on which duty has been paid or on which duty is leviable, and therefore no duty is payable, will not be regarded as 'dutiable goods'. It is only if payment of duty is outstanding or leviable that goods will be regarded as dutiable goods." 5. Considering the submission of the parties and on perusal of record issues which require adjudication in these appeals are as follows; (i) Whether, goods leviable at 'NIL' rate of duty comes within the definition of "Dutiable goods" under Section 2 (14) of the Customs Act, 1962? (ii) Whether goods not chargeable to duty gets immunity from compliance of the statutory obligation under Section 34 and 35 of the Customs Act, 1962 and from penal action in consequences thereof under Section 111 and 112 of the said Act? 6. Before answering these questions it would be appropriate to consider the following Sections under Customs Act, 1962 : "2............................................... (14) "dutiable goods" means any goods which are chargeable to duty and on which duty has not been paid; (15) "duty" means a duty of customs leviable under this Act;" "34............................................ Imported goods shall not be unloaded from, and export goods shall not be loaded on, any conveyance except under the supervision of the proper officer; Provided that the Board may, by notification in the Official Gazette, give general permission and the proper officer may in any particular case give special permission, for any goods or class of goods to be unloaded or loaded without the supervision of the proper officer." "35............................................. No imported goods shall be water-borne for being landed from any vessel, and no export goods which are not accompanied by a shipping bill, shall be water-borne for being shipped, unless the goods are accompanied by a boat-note in the prescribed form: Provided that the Board may, by notification in the Official Gazette, give general permission, and the proper officer may in any particular case give special permission, for any goods or any class of goods to be water-borne without being accompanied by a boat-note." "111............................................. (a) any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs airport appointed under clause (a) of Section 7 for the unloading of such goods; (h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of Section 33 or Section 34; (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer; "112........................................ (a) any person - who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act," 7. On reading Section 2 (14) and (15) of the Customs Act and considering the decision of the Supreme Court 2001 (128) E.L.T. 21 (S.C.) Associated Cement Companies Ltd. vs Commissioner of Customs Para 79, in my considered opinion, any goods can be called "Dutiable goods" under Section 2 (14) of the Customs Act only when it is chargeable to duty and on which duty has not been paid and 'NIL' rate of 'Duty' does not come under the category of "Dutiable goods". In the instant case imported goods i.e. Yellow Peas in question were exempted from 'Duty' and not chargeable. In the instant case imported goods i.e. Yellow Peas in question were exempted from 'Duty' and not chargeable. Contention of the revenue/Appellant that 'NIL' rate of 'Duty' is not legally sustainable and all the judgments cited by the revenue/Appellants as referred above in support of its contention that goods not chargeable to duty comes within the term "Dutiable goods" are all under Central Excise Act, Excise and Salt Act and rules defining the scope of "excisable goods" and none of the decisions are on the definition under Section 2(14) of the Customs Act. In view of the aforesaid discussion, the first question is directly covered in favour of the respondent importer by the decision of the Apex Court in case of Associated Cement Companies Ltd. (supra). 8. Now in answering the second issue relating to violation of Section 34 & 35 of the Customs Act, 1962 and penal consequence thereof, one very important aspect of admitted factual position which requires consideration is that the Tribunal itself in its order has recorded that there was violation of the provisions of Customs Act in this case as follows: "......... the barges other than the one whose names were included in the guarantee declaration, were used. Though the said activity of the appellant, is in violation of the procedural condition envisaged in the Customs Act, 1962, but keeping in view, that no duty liability was involved and appreciating the reasons given by the assessee, I find that the confiscation of the other imported goods or the barges and the imposition of penalty upon the appellants, would not be justified. 9. In my considered view, importing non dutiable goods does not give an importer a licence to violate or flout laws under the Customs Act or grant automatic exemption from complying statutory obligation under Section 34 & 35 or any other provisions of the Customs Act, 1962 and penal consequence in violation thereof. 10. 9. In my considered view, importing non dutiable goods does not give an importer a licence to violate or flout laws under the Customs Act or grant automatic exemption from complying statutory obligation under Section 34 & 35 or any other provisions of the Customs Act, 1962 and penal consequence in violation thereof. 10. In my considered view, action of condonation by the tribunal of the aforesaid violations by the importer by holding that it was procedural violation and secondly that imported goods in question were not "chargeable to Duty" and hence no contravention of Section 111 (h) of the said Act is not sustainable in law since the language of Section 34 of the Act is "Imported goods shall not be loaded......" and in Section 35 of the Act is "No imported goods shall be......" The legislator has not used the expression specifically "Dutiable goods" or "Duty exempted goods". The view of the Tribunal that if no 'Duty' is chargeable or exempted from 'Duty' confiscation and penalty would not be justified is wholly incorrect and not legally sustainable in view of the facts and circumstances involve in this case. Here in this case on perusal of record we find that there was clear violation of Section 34 & 35 of the Customs Act and penal action under Section 111 and 112 of the Act is justified and the importer cannot take advantage of quoting wrongly Section 111 (h) of the Act by the adjudicating authority and escape penalty in the above admitted factual position. However, the importer has come with some explanation for justification of violation of the Acts. Considering the facts and circumstances narrated above and submission of the parties we set aside the order of the Tribunal. Considering the reasons and justification given by the Appellants for failure to observe the statutory formalities and violation of Section 34 & 35 of the Act as recorded in paragraph 3 of the order of the Tribunal, in my considered view imposition of Penalty of Rs. 50,000/- on each of the Appellants in their respective appeal is reasonable. I order accordingly. 11. These appeals are accordingly disposed of. 12. There will be no order as to cost. I.P. Mukerji, J. 13. I am in agreement with the reasons as well as the conclusions reached by my noble and learned brother Md. Nizamuddin, J. in the judgment he proposes to deliver. I order accordingly. 11. These appeals are accordingly disposed of. 12. There will be no order as to cost. I.P. Mukerji, J. 13. I am in agreement with the reasons as well as the conclusions reached by my noble and learned brother Md. Nizamuddin, J. in the judgment he proposes to deliver. However, I would like to add a few observations of my own. 14. Here, issuance of a formal show cause notice was waived by the respondent. The charges against them must have been explained to them orally and reduced to writing in the adjudication order. 15. What is important is the substance of the allegation or charge. If the charge points to any violation of the law it should narrate the facts from which this violation can be inferred. Furthermore, the law violated must be stated. The charge read as a whole should not leave any doubt in the mind of an ordinary reasonable person engaged in or having knowledge of the activities or offences which are the subject matter of the charge, about the nature and scope thereof. When the alleged violation of the law has been sufficiently identified while narrating the facts and tabulating the charge, misquotation of a particular subsection, by inadvertence, in the show cause or in the adjudication order does not vitiate the charge or change the nature of the proceedings. 16. In this case the adjudication order clearly mentioned the allegations against the respondent that they were in breach of s.34 and s.35 of the Customs Act, 1962 by transferring the goods from the carrier vessel to a barge without observing the required formalities. The respondents were charged under these sections read with Section 111(h) thereof. Instead of quoting the appropriate subsection of Section 111which was Section 111(a) or (d) or both Section 111(h) was quoted. The appellant tried to take full advantage of it by saying that since the goods were non dutiable according to the Supreme Court judgment referred to by my learned brother, and the subsection referred to dutiable goods the charge should fail. In my opinion, the charge could not have failed because the other Section 111(d) referred to imported goods and not merely dutiable goods, which were brought into India in violation of law. In my opinion, the charge could not have failed because the other Section 111(d) referred to imported goods and not merely dutiable goods, which were brought into India in violation of law. In this case there was clear violation of Sections 34 and 35 read with Section 111(d), if not Section 111(a) of the said Act. However taking into account the fact that the goods were non-dutiable and their illegal importation did not cause any loss to the revenue, I endorse the order made by my learned brother reducing the penalty. There will be no order as to costs. 17. Certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.