TMI Blog2013 (8) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that the steamer agent had affixed the seal on the containers after stuffing and the steamer agent took charge of the sealed containers - If thast was the fact, then the customs authorities were justified in taking appropriate action for levying of penalty for the short shipment or no shipment in 40 containers. SHAW WALLACE & CO. LTD. Versus ASSISTANT COLLECTOR OF CUSTOMS & OTHERS [1986 (7) TMI 106 - HIGH COURT OF JUDICATURE AT BOMBAY] - The petitioner as a steamer agent files an Import General Manifest and represents before the customs authorities as an agent of the shipper and conducts all affairs in compliance with the provisions of the Act, then the provisions of Section 116 read with Section 148 of the Act get attracted automatically and as a result penalty becomes leviable - The authorities below were justified in imposing penalty as contemplated under Section 116 of the Act - the writ petition filed for challenging the recovery notice failed – Decided against Petitioner. - W.P. Nos. 24045-24046 of 2012 - - - Dated:- 9-1-2013 - R. Sudhakar, J. Shri Hari Radhakrishnan, for the Appellant. Shri P. Mahadevan, Standing Counsel, for the Respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainers outside for stuffing and the same was brought back to the Port in Dubai with the seal given to them. They requested for the BL draft and after checking with the Dubai port and after final confirmation from the shipper they release the Original BL. He further stated that they as liners do not know the quantity or the cargo laden in each container. He further stated that the container weight declared to the vessel operator is as per the declaration of the Shipper. The liner is not aware of the wrong declaration of the Shipper. He stated that the Seal provided at the load port was in tact on arrival. 3.3 The fact that the containers were empty was recorded in the mahazar drawn on 3-12-2009 after open examination of the containers. According to the Department, the Import General Manifest filed by the petitioner/Steamer Agent in respect of the vessel subscribed to the declaration as to the truth of the contents of the Import General Manifest. The further case of the department, as is evident from the show cause notice, is as follows : It is found that the containers have been sealed with the Seals given by M/s. Caravel Shipping Services Agents present at the Port of Loadin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eficiency to the satisfaction of the Asst. Commissioner of Customs/DC, the penal provisions under the Customs Act, 1962 are attracted. 3.5 The decision of the Bombay High Court in Shaw Wallace Co. Ltd. v. Assistant Collector of Customs and others - 1986 (25) E.L.T. 948 relied upon by the petitioner was distinguished and the third respondent came to the conclusion that the petitioner/Steamer Agent had affixed his seal on the containers after stuffing and took charge of the sealed containers. Since no satisfactory explanation was given, the plea of the petitioner that he had no knowledge of the empty containers was rejected. Therefore, invoking Section 116 of the Act, penalty of Rs. 32 Lakhs was imposed on the petitioner for failure to account for short landing of 40 containers containing M.S. Steel Scrap and M.S. Plates. 3.6 The petitioner thereafter filed an appeal before the Commissioner of Customs (Appeals), who, by his order dated 8-3-2012 made in Order-in-Appeal C. Cus. No. 148/2012, upheld the order of the third respondent and confirmed the levy of penalty, as under : 21. From the above it is clear that the person-in-charge of the vessel, the Steamer Agent in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows : (a) that the petitioner is only a Steamer Agent and, therefore, penalty against person-in-charge of the conveyance, as contemplated under Section 116 of the Act, should be imposed only against the Master of the Vessel as per Section 2(31) of the Act; (b) that on a reading of Section 116 of the Act, penalty can be imposed for not accounting the goods if they are loaded in a conveyance for importation and in the present case, the goods were not loaded in the Port of Dubai by the exporter/shipper and, therefore, the petitioner, being a steamer agent, cannot be held responsible for the 40 empty containers and to fortify the said plea, reliance was placed on the decision of the Bombay High Court in Seahorse Shipping and Ship-Management Pvt. Ltd. v. Union of India - 2004 (163) E.L.T. 145 (Bom.); and (c) that in terms of the Bombay High Court decision in Shaw Wallace Co. Ltd. v. Assistant Collector of Customs Others - 1986 (25) E.L.T. 948 (Bom.), if a full container load when unloaded from the vessel and the seals were found intact, then the vessel owner shall not be held responsible for any short landing or be made liable to pay penalty, and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of the conveyance. and in this case, we are concerned with the vessel. 8. Section 148 of the Act imposes a liability on the agent appointed by the person-in-charge of the conveyance and Section 148(2) of the Act provides that the agent appointed by the person-in-charge of the conveyance and any person who represents himself to any officer of customs as an agent of any such person-in-charge is held to be liable for fulfillment of all obligations imposed on such person-in-charge by or under this Act and to penalties and confiscation which may be incurred in respect of that matter. Section 148 of the Act reads as under : 148. Liability of agent provided 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 done on his behalf by his agent. (2) An agent appointed by the person-in-charge of a conveyance and any person who represents himself to any officer of customs as an agent of any such person-in-charge, and is accepted as such by that officer, shall be liable for the fulfilment in respect of the matter in question of all obligations imposed on such person-in-charge by or under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on him under that section has been secured by such guarantee or deposit of such amount as the proper officer may direct; (f) in any case where any export goods have been loaded without payment of export duty or in contravention of any provision of this Act or any other law for the time being in force relating to export of goods, - (i) such goods have been unloaded, or (ii) where the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied that it is not practicable to unload such goods, the person-in-charge of the conveyance has given an undertaking, secured by such guarantee or deposit of such amount as the proper officer may direct, for bringing back the goods to India. 11. As a result of this, it is clear that penalty becomes automatic for not accounting of goods which have been shown as loaded on the vessel in terms of Import General Manifest. The respondents were justified in coming to the conclusion that there is no requirement of proving mens rea on the part of the person-in-charge of the conveyance to fall within the mischief of Section 116 of the Act. 12. The plea of the petitioner is that penalty can be imposed under Section 116 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and give such meaning to the provisions which advance the object sought to be achieved by the enactment. The court cannot approach the enactment with a view to pick holes or to search for defects of drafting which make its working impossible. It is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given. The well-known principle of harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions so as to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under the statute. It is the duty of the court to make such construction of a statute which shall suppress the mischief and advance the remedy. While interpreting a statute the courts are required to keep in mind the consequences which are likely to flow upon the intended interpretation. 9. The scheme of the Act provides that the cargo must be unloaded at the place of inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (2) of Section 148 was enacted to give relief to the aircraft carrier and the officer-in-charge of a conveyance and permit him to leave with the conveyance by making his agent and person representing him responsible for all the penalties and confiscations. Accepting the submissions of the appellants in this context would defeat the purpose of incorporation of sub-section (2) of Section 148 of the Act and make the working of the Act impractical. Such an interpretation would be detrimental both to the carrier, the person-in-charge on the one hand and the Revenue and Customs Authorities under the Act, on the other. Insistence on ascertaining the liability under Section 116 of the Act before passing an order in terms of Section 42 would mean not permitting the conveyance to depart from the customs station unless its officers have minutely examined the whole case and determined the consequences for not accounting of goods. Such could not be the intention of the legislature. (emphasis supplied) 13. On a reading of the above decision, it is clear that the petitioner herein, who is an agent of the person-in-charge of the vessel and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-charge, as the words used are any person . The petitioner herein squarely satisfies the term agent or any person, as he dealt with the goods at different stages of its shipment. 16. It is another matter for the petitioner to work out his remedy against the shipper for any claim whatsoever for the empty containers said to have been loaded if he is innocent. As far as the customs department is concerned, when the petitioner as a steamer agent files an Import General Manifest and represents before the customs authorities as an agent of the shipper and conducts all affairs in compliance with the provisions of the Act, then the provisions of Section 116 read with Section 148 of the Act get attracted automatically and as a result penalty becomes leviable. The authorities below were justified in imposing penalty as contemplated under Section 116 of the Act. 17. For the foregoing reasons, I find no good reason to interfere with the order of the first respondent. Accordingly, the W.P. No. 24045 of 2012 is dismissed. Consequently, the writ petition in W.P. No. 24046 of 2012 filed challenging the recovery notice also fails and the same is dismissed. No costs. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
