1985 (1) TMI 179 - AT - Customs

Issues Involved:

1. Confiscation of 166 packages of consumer goods.
2. Liability of the vessel "Ngan Chau" to confiscation.
3. Penalty on M/s. Hongkong Island Shipping Co. Ltd.
4. Penalty on the Master, Shri Muk Tin Fui.
5. Relevance of the Magistrate's and High Court's exoneration of the Master.

Detailed Analysis:

1. Confiscation of 166 packages of consumer goods:

The Customs officers discovered 166 packages containing dutiable and restricted goods on the vessel "Ngan Chau" and subsequently seized them. The appellants argued that these goods were declared in the Import General Manifest (IGM) and were intended for Bangkok, not for smuggling into India. However, the Tribunal found that the goods were not properly documented, as there were no bills of lading (B/L) or mate's receipts for the packages, and the ship was not scheduled to visit Bangkok. The Tribunal concluded that the goods were intended for smuggling into Bombay, given the tampering of documents and the improper storage of the packages in the navigational light locker.

2. Liability of the vessel "Ngan Chau" to confiscation:

The Tribunal upheld the confiscation of the vessel under Section 115(2) of the Customs Act, which does not require mens rea (criminal intent). The Tribunal noted that the Master of the vessel was involved in the smuggling attempt, and the market value of the goods exceeded the amount of the fine levied in lieu of confiscation. The Tribunal referred to the decision in Everret Orient Lines v. Jasjit Singh, which supports the confiscation of a vessel without the need for mens rea.

3. Penalty on M/s. Hongkong Island Shipping Co. Ltd.:

The Tribunal found no evidence to suggest that the owners of the vessel, M/s. Hongkong Island Shipping Co. Ltd., were complicit in the smuggling attempt. The responsibility for the incorrect declaration of the packages lay with the Master of the vessel and the steamer agents, not the owners. The Tribunal referred to a previous case involving a sister ship of the same company, where the Board had set aside the penalty on the owners. Consequently, the Tribunal set aside the penalty of Rs. 50,000/- imposed on M/s. Hongkong Island Shipping Co. Ltd.

4. Penalty on the Master, Shri Muk Tin Fui:

The Tribunal upheld the penalty of Rs. 50,000/- on the Master, Shri Muk Tin Fui, as he was found to be involved in the unauthorized importation of the 166 packages. The Tribunal noted that the Board had already shown leniency by reducing the penalty from Rs. 1,00,000/- to Rs. 50,000/-, and no further leniency was warranted. The Tribunal rejected the Master's appeal.

5. Relevance of the Magistrate's and High Court's exoneration of the Master:

The Tribunal acknowledged the exoneration of the Master by the Magistrate and the dismissal of the department's appeal by the High Court. However, it emphasized that prosecution and adjudication are separate proceedings, and the judgment of the Magistrate and High Court did not affect the penalty imposed on the Master in the adjudication proceedings. The Tribunal referred to the judgment of the Bombay High Court in Maniklal U. Jain, which supports the view that the departmental authorities are not bound by the verdict of the Magistrate in such cases.

Conclusion:

The Tribunal modified the orders of the Collector and the Board to the extent that the penalty on M/s. Hongkong Island Shipping Co. Ltd. was set aside. The appeals of Shri Muk Tin Fui and M/s. Hongkong Island Shipping Co. Ltd. were otherwise rejected.

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