TMI Blog1995 (5) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,390/- cif from 29 KPD, Calcutta under section 11 of the Customs Act, 1962 on 7-12-1987 on the reasonable belief that the subject goods were imported unauthorisedly and were liable to confiscation under Section 111 of the Customs Act, 1962. 2(B) From the scrutiny of the records of the Calcutta Port Trust at 29 KPD as also the IGM filed for the vessel m.v. Ediza (Rot. No. 132/87), it was observed that the aforesaid goods had been unloaded from the said vessel by the steamer agent as unmanifested excess of the declared and permissible quantity in contravention of Section 32 of the Customs Act, 1962. On verification of the out turn report of the Calcutta Port Trust, it was further observed that the subject goods had been unloaded from the vessel without the permission of the proper officer of the Customs. 2(C) In the course of investigations, statements were recorded from Shri Soumen Mukherjee, Manager of M/s. Federal Union Trading Co., Calcutta, the steamer agent for the vessel and Section 108 of the Customs Act, 1962. Mr. Mukherjee stated that M/s. Hellas Marine, Greece were the owner of the vessel m.v. Eliza and M/s. Square Ltd., Greece were the Managers/ Operators of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made all the arrangements to discharge the cargo at Haldia as well as at Calcutta Port; 2(I) The vessel was chartered by M/s. Hofflinghouse Co. (U.K.) London on FIOST terms that is the entire loading and unloading expenditure was to be borne by the charterer; 2(J) As soon as they came to know from the C.P.T. out turn report that 524 pcs. steel billets were unloaded from the said vessel as unmanifested excess, they informed the same to the charterer s agent M/s. Oceanic Shipping Agency Pvt. Ltd., Calcutta; 2(K) They also informed their principal M/s. S.D.S. Corporation, Bombay about the aforesaid position since the excess cargo could not be adjusted against any shortage in any of the vessel s way-ports. M/s. S.D.S. Corporation, Bombay advise them to do the needful as per the rules and accordingly they abandoned the goods to the Calcutta Port Trust with information to the Asstt. Collector of Customs, Import Noting Department Custom House, Calcutta vide their letter dated 11-5-1987. 2(L) Statement was also recorded from Shri N.K. Mukherjee of M/s. Oceanic Shipping Agency Pvt. Ltd., Calcutta under Section 108 of the Customs Act, 1962 on 24-3-1988. Mr. Mukherjee inter alia s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of lading to M/s. Federal Union Trading Co. on the basis of which M/s. Federal Union Trading Co. filed an IGM and applied for `Prior Entry with the idea that the said vessel belonged to their principals, M/s. Square Ltd., Greece. But subsequently, they came to know that the said vessel was chartered by some other company and they prayed for cancellation of the I.G.M. Again on 23-2-1987 M/s. Federal Union Trading Co. had been requested by M/s. Oceanic Shipping Agency (vide Telex No. A/191, dated 23-2-1987) to make all necessary arrangements to bring the vessel at Haldia and Calcutta Ports as per directions of their principals (M/s. Hofflinghouse Co. Ltd. (UK). They had been requested by M/s. S.D.S. Corporation, Bombay the principal of M/s. Federal Union Trading Co. to the same effect. Accordingly, the appellant Company, M/s. Federal Union Trading Co. again filed an I.G.M. as per Bill of Lading received by them from the importers, M/s. Indian Iron Steel Co., Calcutta. M/s. Oceanic Shipping Agency (P) Ltd., the other appellant Company herein, were appointed as the steamer agents of the charterer to discharge the cargo of the vessel at Haldia by Captain J. Bloore, authorised r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants made a declaration only on the basis of the bill of lading. In such circumstances, it was contended that no penalty is imposable on the appellants. Even otherwise, it was contended that the penalty imposed on the appellant is excessive. 6. The learned Advocate, Shri I. Mitra appearing on behalf of the appellants, M/s. Oceanic Shipping Agency Pvt. Ltd. contended before us that there was no material before the Adjudicating Authority to hold that the unmanifested excess cargo was unloaded by them wilfully. It was contended that the appellants were in no way instrumental in discharging or lightening the cargo and in any event there was nothing on record to show that unmanifested excess cargo was discharged by the appellants. It was his contention that merely because the appellants acted as an agent of the foreign seller, it cannot be presumed that unmanifested excess cargo was imported by them. It was pointed out that under Section 32 of the Customs Act, 1962 the imported goods should not be unloaded unless mentioned in Import Manifest or the Import Return. But in the instant case, it was the liability of the agent of the said vessel or the person who filed the Import Manife ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y had also signed the declarations to the effect that the cargo declaration contained the full and true account of the particulars of the goods (imported in the vessel) and that all the particulars furnished were true. Basing on their declaration the vessel was allowed final entry on 28-2-1987. In that view of the matter, he contended that since the unmanifested cargo was found thereon, the appellants, M/s. Federal Union Trading Company are liable to be penalised. 8. As far as the appellants, M/s. Oceanic Shipping Agency Pvt. Ltd. are concerned Shri Ghosh, ld. J.D.R. also contended that as per the provisions of Section 112 of the Customs Act, 1962 the penalty is imposable on any person who in relation to any goods does or omits to do any act which renders the goods liable for confiscation under Section 111 of the Customs Act, 1962. He, therefore, contended that the scope of the penal provision under the above-said Section is not restricted only to an agent of the owner of the vessel. In this connection, he pointed out that on the admission of the appellants, M/s. Oceanic Shipping Agency Pvt. Ltd. it is seen that they were appointed as the agents of M/s. Hofflinghouse Co. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by these appellants they did not mention about 524 unmanifested rolled steel billets weighing 369.91 tonnes. Therefore, these steel billets are prohibited and dutiable goods and they are liable to be confiscated under Section 111(d), (f) and (g) of the Customs Act, 1962. It is thus seen that under Section 112(a) of the Customs Act, 1962 if any person 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 is liable to be penalised. In this case, the act of the appellants in omitting to mention the above-said unmanifested cargo in the declaration has made the same liable for confiscation. In other words, the act of the appellants in mentioning only 9491 rolled steel billets has made the excess of 542 pieces liable for confiscation. Therefore, the mens rea is not an essential element as far as Section 112(a) is concerned. In Section 112(a) the mental state is irrelevant. However, in Section 112(b) of the said Act it is mentioned clearly that if anybody acquires or possesses or is in any way concerned in removing, depositing, harbouring, keeping, concealing or selling or purchasing or in any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Hon ble Supreme Court at para 12 held as follows :- The Statute we are concerned with prescribes a strict liability without need to establish mens rea. The actus reus is itself the offence. There might be cases where some mental element might be a part of the actus reus itself. This is not one of those cases where anything more than mere doing of the prescribed act requires to be proved. There is thus no merit in the second point either. Applying the above principles to the facts of this case the appellants are liable to be penalised. Accordingly, the penalty imposed on the appellants is in accordance with law. However, in the facts and circumstances of the case we reduce the same to a sum of Rs. 50,000.00 (Rupees fifty thousand only). The appeal of M/s. Federal Union Trading Co. is accordingly disposed of. 11. As far as the appellants, M/s. Oceanic Shipping Agency Private Limited are concerned, it is seen that on their own admission, they had stated that they were appointed by M/s. Hofflinghouse Co. (UK), London as their agents to discharge the cargo of the vessel : ELIZA at Haldia and eventually at Calcutta. Based on this authorisation given to them by Captain Blo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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