9911796707
TMI Blog1998 (12) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices Pvt. Ltd. on whom a penalty has been imposed under section 112. Appellant in C/783/98 is a partner of the firm GP Dave and Sons (Shipping) on whom also a penalty under section 112 has been imposed. Shakti Shipping International had purchased a ship MV Kristian Raud, from its owners in United Arab Emirates for being broken up. After usual formalities such a permission was granted for purchase and for breaking. Some days after this, Custom officers, visited the breaking yard, found some drums containing an oily substance in there and a quantity of the substance still on board the ship. Enquiries by the Customs concluded that this was fish oil import of which was prohibited by the policy in force. Notices were issued proposing confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oil. The impugned order also relies upon a test report of the Central Revenue Chemical Laboratory (CRCL), a copy of which was not furnished to this appellant. Further, it is unclear how the value of Rs 3.33 lacs has been determined for this quantity of oil. The importer had not been given any basis for the valuation. 3. Mr. Parikh's contention is that the goods are residue of fish which may contain some small proportion of unusable oil, which was present in the ship because she was earlier being used as a fishing trawller. He relies upon a report of Ana Laboratory. This is somewhat ambiguous but seems to indicate that the goods are fish liver oil containing water and is not fit for human consumption. We are of the view that the test r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn appointed by Ashit Shipping Services as sub agent. He therefore contends that Ashit Shipping Services has not done any action or omission which would render it liable to penalty. Therefore, he says, it is not liable to penalty either under clause (a) or (b) of Section 112. Mr Ramabhadran, Advocate for N.J. Dave, sub agent, adopts the same arguments. 6. Neither Ashit Shipping Services, nor its sub agent have held themselves out to be the agent of the master of the vessel. They have not filed any bond or undertaking in such cases binding themselves for payment of any penalty or dues that would be leviable on the master of the vessel. Import manifest and connected papers have been signed not by them but by the master. 7. So far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst is that there is, specifically, no proposal in the notice to penalise the persons as a consequence of liability to confiscation of these goods under clause (f) of Section 111. Clause (f) is referred virtually in passing in paragraph 39 of the notice. There is no discussion or material in the notice which would indicate that failure to declare the goods in the manifest was a reason proposed to imposition of penalty or confiscating the goods. The same holds good for the Commissioner's order. There is no point in his discussion of the liability to penalty for not mentioning the oil in the manifest, although he orders confiscation and penalty both under clauses (d) and (f) of Section 111. 9. Section 148 provides that anything require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the goods were not declared in the manifest, which, it is not disputed, they were not. However, this manifest was signed not by the agent but by the master of the vessel who is required to file it under Section 30. There would, in such situation, be no question of the agent doing something which the master has done. It is also to be noted that penalty has been imposed on the master of the vessel under Section 112 in the same proceedings. The facts of this case therefore do not justify applying the provision of clause (f) of Section 111. Penalties were not imposable on them. Their appeals are allowed with consequential relief.
10. Accordingly, all the appeals allowed and impugned order set aside. X X X X Extracts X X X X X X X X Extracts X X X X
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