TMI Blog2012 (8) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... VOCATE SHRI D.K.ACHARYA, SPL. COUNSEL FOR THE REVENUE. Per Shri S.K.Gaule Heard both sides. These Appeals are directed against the Order-in-Original No. 18/Cus/CC(P)/WB/2009 dated 24.06.2009 passed by Commissioner of Customs(Prev.), West Bengal, Kolkata. The issue involved in these Appeals is common. Therefore, they are taken up together for disposal. 2. Briefly stated facts of the case are that during the course of river patrolling, the Customs Officers intercepted a vessel namely, M/V Pandaw 4, Yangon at the rear end in a suspicious condition. No person including Mr. Neville Joseph in-charge of the vessel on board (all being Myanmar Nationality) came forward to give proper reply regarding the necessary 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. Centur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a transport provider. However, he was the representative of Pandaw Cruises India(P) Ltd. as per his statement dated 26.05.2009. Shri Neville Joseph@Myo Min Soe stated that he arrived at Kolkata Airport at 16.45 by IC-728 on 1.05.2009 and went to Panasia Guest House, Salt Lake with one person not known earlier and stayed there upto 14.05.2009. He was also accompanied by four Myanmar Nationality persons. All these five persons are now on Pandaw 4. On 15.05.2009 morning, they went to Sagar by car and then by vessel. After waiting for about four hours they saw Century Star 1 bringing their vessel, Pandaw 4. He had boarded the vessel along with other four Myanmar Nationality crews namely, (1) U Than Win; (2) U Thant Zaw 00; (3) Maung 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rupees Five Lakhs only) to M/s. Pandaw Cruise Company Ltd.(BVI) under 112(a) of Customs Act, 1962. g) I impose a penalty of Rs.10,000/- (Rupees Ten Thousands only) to Mr. Nitin Sakunia of M/s. Travel Bureau u/s 117 of Customs Act, 1962. 3.1.1 Dr. P.Kumar, Learned Advocate appearing for the Appellants, M/s. Pandaw Cruise India Pvt. Ltd. and M/s. Pandaw Cruise Co. Limited (BVI) contended that the Appellants were conducting a bonafide import of the vessel in terms of all the permissions obtained well in advance from the Central Government and State Governments of West Bengal and Bihar. They genuinely wanted to develop waterways in India, which has not been explored as a source of transport. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied circumstance. In support of his contention he placed reliance on the judgements of the Hon ble Supreme Court in the case of Eicher Tractors vs. CC reported in 2000(122) ELT 321 (SC) and in the case of CC, Calcutta vs. South India Television Pvt. Ltd. reported in 2007(214) ELT 3(SC). He also referred to Section 111(a) of the Customs Act, 1962. He submitted that Section 111(a) can be invoked, only if Pandaw 4 was unloaded or attempted to be unloaded at any place other than a Customs Port or Customs Airport appointed under clause (a) of Section 7 for the unloading of such goods. He also contended that the provisions of Section 111(b) of the said Act are not applicable to the facts and circumstances 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 referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daw or the Tug, which rendered them liable to confiscation. In fact, there is no such allegation in the said Order against the Appellant. The allegations are against the Steamer Agent, M/s. B.Ghosh Co. Pvt. Ltd. of omission and commission. In such circumstances, there can be no imposition of penalty upon the Appellant under either Section 112(a) or (b) of the Customs Act, 1962. 3.2.4 Lastly, without prejudice to the aforesaid and fully relying on the same, it is also his contention that the imposition of redemption fine of Rs.75 lakh and penalty of Rs.60 lakh, in the facts and circumstances of the instant case, is undue, oppressive, discriminatory, inequitable and hence, untenable 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is his contention that the appellant on his own accord had intimated the Port Trust Authorities in advance on 15.05.2009 about the arrival of Pandaw 4 at Sagar towed by CENTURY STAR 1 and they were agreed to pay pilotage charges for the vessel so being brought from Sagar to Kolkata. The Harbour Master when had advised the Superintendent of Collection for collection of pilotage charges, the appellant had also paid the pilotage charges. 4.1 The contention of the learned Special Counsel appearing for the Revenue, is that the submission of Import General Manifest stating full and complete facts together with entry inward and landing at approved places and Customs stations can 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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