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TMI Blog2012 (8) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... y shipping document or any other licit documents towards the importation of the vessel. Information was gathered that M/s. B. Ghosh & Co. Pvt. Ltd. was Handling Steamer Agent. In response to the correspondence made by the Department, M/s. B.Ghosh & Co. Pvt. Ltd. vide their letters dated 23.05.2009 and 25.05.2009, could not show that any Customs formalities or any entry/information were with regard to Pandaw 4. They stated that Tug Century 1 owned by M/s. Century Star Shipping Ltd. had towed Pandav 4 from Myanmar to Sagar Road. It was found that M/s. B.Ghosh & Co. Pvt.Ltd. were the Steamer Agent for M/s. Century Star 1. Neither the Captain of Tug Century 1 nor M/s. B.Ghosh & Co. Pvt. Ltd. informed the Boarding Officer of Customs that the Tug Century Star 1 and Pandaw 4 had brought the vessel, Pandaw 4. The IGM filed by M/s. B.Ghosh & Co. Pvt. Ltd. before the Custom House for the Tug Century Star 1 only showing as Water Ballast. From the statements of different persons from time to time and the letter of M/s. Century Star Shipping dated 30.05.2009, it revealed that at Sagar Point, the Pandaw 4 was detached from Tug Century Star 1, and thereafter, it was propelled by her own power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aung Maung 00; and (4) Zaw Moe. Shri Neville further stated he did not know why the Pandaw 4 did not arrive at Kolkata from Yangon by her own. He had been instructed by his office to bring Pandaw 4 from Sagar Point to Kolkata by her own engine after Tug Century Star 1 denied bringing the same from Sagar to Kolkata. He did not know who imported Pandaw 4 from Yangon to India. Shri Paul Strachen, CEO of Pandaw Cruises, England was the owner of Pandaw 4 as on date. He did not know to whom the Pandaw 4 will be handed over at Kolkata/India. It was alleged that that no Customs permission and no immigration permission was taken by the Steamer Agent, M/s. B.Ghosh & Co. Pvt. Ltd. for the boarding of Myanmarese to the foreign vessel, Pandaw 4. The visas of all the Myanmarese who were on the vessel did not possess the requisite visas for the ship. During the voyage from Yangon to Sagar, there was no person on board of Pandaw 4. There was no permission from the Immigration and the Customs Authorities for offloading of Pandaw 4 from Century Star 1 at Sagar. Since the Tug Century Star 1 entered the Indian Customs Water (Sagar Roads) with vessel, Pandaw 4, therefore, Pandaw 4 was held to have impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Only after all the approvals were in place, the vessel was imported. 3.1.2 The contention is that Appellants complied with the advice given by the Inland Water Transport Directorate (IWAI), Government of West Bengal, vide its letter No.145/WT dated 18.06.2009. They had appointed M/s. B.Ghosh & Co. Pvt. Ltd. as a steamer agent to meet the procedural requirement of Customs like obtaining clearance etc. 3.1.3 The contention is that valid documents like bill of lading, export documents etc. were correctly produced. Accordingly, export licence issued by the Directorate of Trade, Myanmar (Registration No.4072) containing all the vital details like names of exporter and importer, last date of export, mode of export, port of export, port discharge, country of origin, country of final destination, method of export, value and description of goods etc. were produced. Besides that, fixture note issued by M/s. Mekong Marine Corporation (BVI), British Virgin Islands containing details like name of tug vessel, towing vessel s name, laycan, freight, towing load port position, discharge port, mode of payment of freight and other terms of conditions. 3.1.4 The contention is that P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the present case. The contention is that Section 111(d) of the Act ibid, empowers confiscation of only those goods which are imported or attempted to be imported or are brought within the Indian Customs Waters for the purpose of being imported, contrary to any prohibition imposed by any Order under the Customs Act or any other law for the time being in force. Therefore, he contended that the provisions of Section 111(d) are not applicable to facts of the present case. He also referred to page no.17 of the impugned Order whereby the learned Commissioner has observed that no duty was involved on the cruise vessel in terms of Serial No.352 of Notification No.21/2002-Cus. The contention is that when no duty is leviable, penalty is not imposable. He also contended that if goods are not liable to confiscation, no penalty is imposable. In this context, he placed reliance on the following decisions:- (i) 2006(201) ELT 325(SC) CCE,Aurangabad vs. Balakrishna Industries; (ii) 2005(184) ELT 276 (Tri.-Mumbai) Sunland Metal Recycling Industries vs. CC, Nhava Sheva; (iii) 2000(122) ELT 625(Tri.) Dhirendra N. Sheth vs. CC, Kandla; (iv) 2005(191) ELT 166 (Tri.-Bang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able and unsustainable. 3.3.1 Appearing on behalf of M/s. B.Ghosh & Co. Pvt. Ltd., learned Advocate, Shri S.Bhattacharjee submitted that the primary responsibility of Master of Vessel was not delegated to them. They are not covered under Section 2(31) of CA 62. Hence penalty on the count of contravention of Section 30 of CA 62 cannot be invoked against them for the vessel Pandwa 4. They had no liability towards contravention of the alleged provisions of Section 111 of the Act and hence no penalty is warranted against them. They had also informed the Harbour Master (River), Kolkata Port under their letter dated 15.05.09 about the arrival of the tug and the vessel. They prayed for payment of pilotage charges and subsequently paid but not concealed any material facts from the Department. They rightly discharged their dock formalities for both the Vessel and the Tug. Since they did not receive the vessel details, it s B/L and Crewmembers list and master of the vessel had not contacted them in filling IGM the same was not filed. It is also his contention that they had obtained all necessary documents pertaining to CENTURY STAR 1 they assisted the person-in-charge of Tug to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hardly be over-emphasized, particularly in the wake of serious security breaches resulting in the massacre of the city of Mumbai by ten well-trained terrorists. In the application for entry inwards, there is a Remarks column, vide Customs Form No.56, apart from the mandatory requirement to have separate attachment for sensitive cargo. The Director of Inland Water Transport Directorate of Govt. of West Bengal, vide his Office Letter No.145/IWT/dt.18.06.2009 advised Sh. Raj Singh to obtain Customs clearance. The vessel, having been towed from Myanmar to Sagar (unauthorized landing place) lost the character of a vessel upto that point and has been rightly ordered to be confiscated under Section 111(a), (b), (d) and (h) of C.A. 62. The Tug Century Star 1 has been rightly ordered for confiscation under section 115(2) of CA.'62, for smuggling in Pandaw 4, by clandenstinely detaching at Sagar point and suppressing the fact from the Customs Authorities. 4.2 As regards M/s. B.Ghosh & Co., the contention is that as for individual responsibilities, they had handled both Century Star 1 and Pandaw 4 and they are having vast experience as Steamer Agents. How could they do such omissions and co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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