TMI Blog2013 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... n-charge – Held that:- Section 116 makes it clear that penalty was imposed for not unloading the goods which were loaded in vessel for importation into India - There was no requirement of proving mens rea on the part of person-in-charge of conveyance – relying upon M/s. ITC Ltd. v. CCE Delhi [2004 (9) TMI 103 - SUPREME COURT OF INDIA] – order upheld – Decided against assesse. - F. No. 373/33/SL/2012-RA - 278/2012-Cus - Dated:- 27-7-2012 - Shri D.P. Singh, J. Shri G. Derrick Sam, Advocate, for the Assessee. ORDER This Revision Application is filed by the applicant M/s. Caravel Logistics Pvt. Ltd. (formerly known as M/s. Caravel Shipping Services Pvt. Ltd.), Chennai against the Order-in-Appeal No. C. Cus. No. 148/2012, dated 8-3-2012 passed by the Commissioner of Customs (Appeals), Chennai with respect of Order-in-Original No. 13347/2010-MCD, dated 29-10-2010 passed by Joint Commissioner of Customs, Chennai. 2. Brief facts of the case are that M/s. Komal Enterprises, Hyderabad imported 110 containers of MS scrap/plates from UAE out of which 40 containers were found to be empty as revealed from the investigation by the Docks Intelligence Unit. The applicants are the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anifest prior to the arrival of the vessel. It no where talks about the duty of the person in-charge of a vessel to deliver the import manifest prior to the arrival of the vessel. It no where talks about the duty of the person in-charge of the vessel the physically verify the containers handed over to them at the load port. The Commissioner has failed to appreciate the fact that the steamer agent issues the bill of lading with a narration said to contain . The application as steamer agents, were not aware of the fact that the containers were empty and nothing was stuffed inside the container. It is also submitted that the particular shipper has duped many consignees and the applicant understand that nearly 400 containers have arrived empty in Nhava Sheva port and elsewhere. The conduct of the shipper was unforeseen and unpredictable in the normal course of business. The applicant supplied the containers and they were taken to the shippers premises where the shipper used the applicant s seal and returned the containers. In such circumstances the Joint Commissioner ought to have used his discretionary power in an objective and rational manner and desisted from imposing penalty that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me shortage of purportedly stuffed cargo and the steamer agent being unaware of it or in a case where the steamer agent chose to ignore the same as a minor variation/ aberration in weight during the course of handling the container which will not have any major impact on the overall load balance of the vessel. The Commissioner at paras 11 and 12 has laboriously tried to justify the imposition of penalty by referring to the weight of the cargo vis- -vis the sailing load balance of the vessel. The Commissioner has failed to note that the applicant is not the shipping line but the steamer agent. He also filed the import manifest in terms of the Customs Circular No. 30/2004 as a steamer agent. Therefore, he could not have possibly now the shortage in the cargo at the time of loading and at the time of sailing of vessel. The Commissioner has failed to verify this fact. 4.4 The Commissioner has failed to note the fact that the applicant has filed the import manifest in the capacity of a steamer agent and not in the capacity of shipping line. In such a situation, it is practically impossible to find out the weight variation/aberration during the handling of the containers or dealing wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) has passes the impugned order. 4.7 In para 12 line no. 6 of the impugned order, Commissioner have held that There is much more fishy in the entire operation than what is known outwardly involving the purported importer in India, the supplier from the load port, the agent of the steamer agent who is in-charge of the vessel and the steamer agents themselves. . From this it is evident that the Commissioner (Appeals) has not applied his mind in adjudicating this matter. Mere doubt will not be enough to penalize the applicant. It is a basic principle of law that charges should be proved beyond any doubt if not the benefit of doubt should be given to the applicant. 4.8 The material on record does not justify the imposition of penalty. It was held in Akbar Badruddin Jiwani v. Collector of Customs - 1990 (47) E.L.T. 161 (S.C.) that it is necessary to establish mens rea for imposition of penalty. No evidence on record shows that the applicant acted with mens rea and was involved in this fraud. With proper justification penalty cannot be imposed on the applicant. 5. Personal hearing in this case was scheduled on 31-5-2012 and 2-7-2012. Shri G. Derrick Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation of impugned penalty, the provisions of Section 116 of the Customs Act, 1962 unambiguously stipulates the levy of penalty not exceeding twice the amount of duty. 8.1 Applicant has mainly contended that under Section 116 penalty can be imposed only on person-in-charge of the conveyance and not on steamer agent, that seals of containers were found intact and therefore no penalty can be imposed under Section 116. 8.2 Government observes that person-in-charge of conveyance is responsiable for any short-landing or non-landing of goods. As per definition in Section 2(31) of Customs Act, 1962, person-in-charge of the conveyance is the master of the vessel. There is no dispute in the matter that all the 40 containers were found empty and total quantity as per Bill of Lading was found short. The steamer agent is a agent of carrier, appointed under Section 148 of Customs Act, 1962. The liability of the agent so appointed by the person-in-charge of the conveyance stipulated under Section 148 is as under :- 148. Liability of agent appointed by the person in charge of a conveyance. - (1) Where this Act requires anything to be done by the person in charge of a conveyance, it may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son-in-charge of the conveyance shall be liable, - (a) In the case of goods loaded in a conveyance for importation into India or goods transshipped under the provisions of this Act, to a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been imported; (b) In the case of coastal goods, to a penalty not exceeding twice the amount of export duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been exported. The said provision of Section 116 makes it clear that penalty is imposed for not unloading the goods which were loaded in vessel for importation into India. There is no requirement of proving mens rea on the part of person-in-charge of conveyance. In this case, the short-landing or non-landing of goods is not denied by the applicant as all the 40 containers on examination were found empty. Moreover, person in charge of vessel cannot claim that he was not aware of empty nature of containers as 1000 MT weight not loaded on the ship cannot go unnoticed. Therefore, the penalty was rightly i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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