TMI Blog2013 (7) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... audulent intention on their part to claim the goods - they had no locus standi to file request for amendment in IGM as Section 30(3) of Customs Act authorises only carrier to apply for such amendment – decided against assessee. - F. No. 373/109/B/2011-RA - 234/2012-Cus - Dated:- 21-5-2012 - Shri D.P. Singh, J. REPRESENTED BY : Shri S. Krishnanand, Advocate, for the Assessee. None, for the Department [Order]. This revision application is filed by applicant M/s. Pioneer Impex, Chennai against the Order-in-Appeal No. 14/2011 dated 17-3-2011 passed by the Commissioner of Customs (Appeals), Coimbatore with respect to Order-in-Original No. 01/2010-ADC, dated 26-3-2010 passed by the Deputy Commissioner of Customs, Air Cargo Complex, Coimbatore. 2. Brief facts of the case are that an unaccompanied baggage covered by AWB No. 629-1142-5481 was booked on 21-3-2009 at Singapore by Shri Sooravali Raju, Thirukoshtiyur, Pasumpon Muthuramalingam District holding passport No. Z 1548156 as shipper with the declaration of contents as personal effects and consigned to India to himself. The said unaccompanied baggage was transported from Singapore to Coimbatore on 27-3-2009 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Airway bill in accordance with the statutory provisions and departmental instructions issued from time to time within a period of two months. 2.4 In compliance to the said order of Hon ble High Court the lower authority rejected claim of the applicants for amendment of subject Airway Bill 62911425481 dated 27-3-2009 of Silk Air, Singapore relating to the unaccompanied baggage arrived by Silk Air Flight MI-458 on 27-3-2009 at Coimbatore in the name of Shri Sooravali Raju. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals), who rejected the same. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 129DD of Customs Act, 1962 before Central Government mainly on the following grounds : 4.1 The Lower Appellate Authority has not considered the detailed materials there to, as well as the submissions made at the time of personal hearing but instead proceeded to pass the impugned order on the basis of certain materials, which cannot be termed as relevant to the issue at hand. At paras 4.4 and 4.5, the Appellate Authority finds that Sooravali Raju received the del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim backed up by evidence. Notice was also issued to the said Sooravali Raju, who did not appear before the Lower Authority nor made any claims. On the other hand, in the proceedings held before the Commissioner of Customs and Central Excise, Coimbatore for extension of time for issue of Show Cause Notice, the said Sooravali Raju appeared through his advocate and stated that he has nothing to do with the goods under seizure. In such a situation, there being no rival claimant for the goods, the claim of the applicant ought to have been entertained and necessary orders passed for amendment of the Airway Bill and the IGM. On the other hand, authorities have proceeded to reject the claim for amendment on a premise that it is fraudulent. 4.3 There is no overseas verification done by the investigating agency with the Freight Forwarders, M/s. Tri-Royal Forwarding (S) Pte. Ltd., Singapore nor with the carrier M/s. Silk Air of Singapore. The further finding that no Airway Bill has been issued or Registered in the name of M/s. Pawa Brothers Trading Private Limited, Singapore either on 21-3-2009 or up to 27-3-2009 is again erroneous. It is to be remembered that what was dispatched to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Import Manifest. 5. Personal hearing was scheduled in this case on 31-1-2012 at Chennai was attended by Shri S. Krishnanand, Advocate on behalf of the applicant who reiterated the grounds of Revision Application. Nobody attended hearing of Chennai on behalf of respondent-department. Another hearing was fixed on 15-5-2012 but respondent-department neither attended second hearing nor filed any written reply. As such Government takes up the case for decision on the basis of available case records. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 7. On perusal of records, Government notes that original authority, Deputy Commissioner of Customs, Air Cargo Complex, Coimbatore vide Order-in-Original dated 26-3-2010 after considering all the submission made in the case rejected the applicant s request for amendment in the IGM. In appeal, Commissioner (Appeals) vide Order-in-Appeal dated 17-3-2011 upheld said order dated 26-3-2010. Now applicant has filed this revision application against the impugned Order-in-Appeal on the ground stated in para 4 above. 8. Applicant has mainly argued that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name and address of the consignor and consignee was M/s. Pawa Brothers Trading Pvt. Ltd., Singapore and M/s. Pioneer Impex, Chennai respectively and requested M/s. Silk Air to inform their agent in Coimbatore to amend the column of shipper and consignee in the AWB. On 6-4-2009 M/s. Silk Air, Coimbatore informed by their letter that M/s. Silk Air, Singapore was advised to inform M/s. Tri Royal Forwardings Pvt. Ltd., Singapore that their request for the change of shipper s name in the AWB No. 629-1142 5481 cannot be acceded to and further advised to be more careful in dealing with consignments booked by the said forwarders in future as the three consignments booked by the said forwarders in the past with the declaration personal effects were found to contain electrical/electronic and other goods in commercial quantities during the customs examination. 9.2 Commissioner (Appeals) has observed in his findings in para 4.6 and 4.7 of the said Order-in-Appeal as under :- 4.6 It is noticed while examining the case records during the proceedings before the lower authority, the carrier of the impugned goods M/s. Silk Air have submitted their statement dated 25-3-2010 wherein they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the copy of the letter of M/s. Tri Royal Forwarding (S) Pte. Ltd., and he was informed that his request cannot be accepted for the reason that the shipper and consignee under AWB No. 62911425481 came in person and the delivery order already issued on 28-3-2009; For the letters from M/s. Aum Associates, Chennai, lawyer for Shri Deen Mohammed, demanding delivery order in favour of M/s. Pioneer Impex and demanding the amendment in the AWB, reply was sent to them that their request cannot be accepted; As per the Air Cargo Tariff Manual of IATA- Rule 2.6.1 a shipper can make a request for any amendment in the AWB but the shipper can exercise that right before the consignee has taken possession or requested delivery of the goods. Further the shipper s right shall cease at the moment, when after arrival of the cargo at destination, the consignee takes possession or requests delivery of the cargo; All the carriers are governed by the Rules framed by the International Air Transport Association. As per the said TACT Rules framed by them they cannot entertain the request of M/s. Tri Royal Forwarding (S) Pte. Ltd., for the amendment in the AWB No. 62911425481 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CA, M/s. Union Air Freight, Singapore. In fact they went ahead to instruct their registered RCA to be more careful in the future dealing with M/s. Tri Royal Forwarding (S) Pte. Ltd., since 3 consignments booked during March 2009 with a declaration personal effects were found to contain sensitive goods other than personal goods. This clearly indicates that the Airliner does not give any credence to the claim of M/s. Tri Royal Forwarding (S) Pte. Ltd., and disagree to the bona fide nature of such modified AWB. The Airliner has concluded that the impugned AWB filed by them was accurate and complete and requires no changes or modification. The above averments clearly negates the claim of the applicants that the mistake was committed by the staff of M/s. Tri Royal Forwarding (S) Pte. Ltd., and clearly proves that the claim of applicants as false . The carrier has aptly cited that as per the Air Cargo Tariff Manual of IATA-Rule 2.6.1, a shipper can make a request for any amendment in AWB before the consignee takes possession or requested for delivery of goods. The Airliner had declined the request of M/s. Tri Royal Forwarding (S) Pte. Ltd., for the amendment in the impugned AWB by cit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shipper can make a request for any amendment in the AWB but shipper can exercise the right before consignee has taken possession or requested delivery of goods. Further shipper s right shall cease the moment when after arrival of the cargo at destination, the consignee takes possession or requests delivery of goods. In this case shipper Shri Sooravali Raju did not make any such request rather he obtained the delivery order for clearance of goods booked by him at Singapore. Government finds that carrier has neither amended the AWB nor made any request for amendment in the IGM in view of position explained above. 9.4 Government notes that the shipper of goods Shri Sooravali Raju never stated before DRI Officers that it is case of mis-sent goods. He never associated with the investigation and did not attend hearings before adjudicating authority as well as appellate authority. The applicants came forward to claim the goods on 17-4-2009 after the goods were seized by DRI on 8-4-2009. The goods were booked from Singapore on 21-3-2009 and if it was case of mixing up the cargo or mis-sent Cargo, the applicant could have not remained silent for 26 days. Therefore, commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make and subscribe to the declaration as to the truth of its contents. (3) If proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete, and that there was no fraudulent intention, he may permit it to be amended or supplemented. From perusal of above section, it is evident that a person-in-charge of a vessel, aircraft or vehicle files the IGM and also certifies the correctness of its contents. In this case carries M/s. Silk Air has sticked to the correctness of IGM filed by them and they did not agree with request of M/s. Tri Royal Forwarding (S) Pte. Ltd., to amend the AWB No. 62911425481. The Harmonious reading of subsection (2) and (3) of Section 30 makes it clear that only person-in-charge of carrier can seek amendment in IGM and if the proper officer is satisfied, he can allow such amendment provided there was no fraudulent intention. The provisions of Section 30(3) has been further clarified by the Board vide Circular No. 13/2005, dated 11-3-2005 and Circular No. 44/2005-Cus., dated 24-11-2005. Vide Circular No. 44/2005-Cus., dated 24-11-2005, it has been clarified that cases involving fraudulent intention or substant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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