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2016 (9) TMI 975 - AT - CustomsImposition of penalty - Port Clearance Certificate - Charter Agents - Bagged Rice - extension of port clearance upto 07.02.2012 - surrender of original Port Clearance Certificate on 08.02.2012 - Section 42 of the Customs Act, 1962 - whether the penalty imposed for the reason that the vessel has left the port without Port Clearance Certificate as envisaged in Section 42 of the Act is justified? - Held that: - Section 42 states that no vessel can leave without written order given by the proper officer. It does not say that the original Port Clearance Certificate has to be in the hands of the master of the vessel while leaving the port though it may be necessary for the vessel to have the original port clearance certificate in case it is intercepted or for that matter for any other inspections. Section 42 of the Act only says that the vessel shall not sail unless a written order is given by a proper officer. Perhaps the appellant, Steamer Agent was in possession of the Port Clearance Certificate and the Master of the ship had in possession only a photocopy of Port Clearance Certificate. Section 148 of the Act states that the principal/master of the vessel shall be liable for the acts or omissions committed by the agent and vice versa. At the time of sail of the vessel if the appellant who are Steamer Agents of the vessel were holding the Port Clearance Certificate, it cannot be said that there is violation of Section 42 if the vessel leaves the port during the validity of Port Clearance Certificate. The department has issued Port Clearance Certificate which was valid till mid night of 07.02.2012. So also department does not have a case that the vessel sailed after mid night of 07.02.2012. Therefore, at the time of sail of the vessel from the port, there was a valid Port Clearance Certificate issued by the department. Penalty imposed under section 42 of the Customs Act, 1962 is unsustainable - appeal allowed - decided in favor of appellant.
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