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TMI Blog2014 (2) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 - Company. The Managing Director is Petitioner No. 2 before this Court while the Purchase Officer is Petitioner No. 3. Respondent No. 1 is the Union of India while Respondent No. 2 is the Commissioner of Customs and Central Excise. 2. This Court issued notice before admission on 29.01.1998 and then issued rule in the matter on 18.02.1998. The petitioners were permitted to pay due customs duty and the respondents were directed to release machine. The petitioners gave an undertaking to pay fine and penalty as imposed, in case they fail in the petition. On 19.03.1998, Division Bench of this Court modified that order and directed release of machine on payment of full amount of Customs duty and upon furnishing a Bank guarantee in the sum of Rs.1,50,000/; subject to the same, an interim order staying the operation and effect of impugned order came to be granted. This order and arrangement continues till date. The petition was dismissed in default on 03.07.2006 and was restored subsequently. 3. We have heard Shri Kothari, learned counsel for the petitioners and Shri Mishra, learned Assistant Solicitor General of India, for the respondents. 4. The fact that Petitioner No. 1 is an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, cannot be allowed to be raised. We have, therefore, not permitted Shri Kothari, learned counsel, to advance arguments on this issue as there may be various delegations and notifications empowering Respondent No. 3 in the matter. Even otherwise, as the material on record is not sufficient to decide this contention, we are not inclined to decide it without affording due opportunity to the respondents. 6. Shri Kothari, learned counsel has submitted that declaration of Customs Airport under Section 7(a) of the Act is sufficient to allow unloading of imported goods at Nagpur Airport and the reason that in the absence of declaration of an approved place in terms of Section 8(a) of the Act, the goods could not have been unloaded, is unsustainable. He contends that Section 7(a) of the Act is the power given to Central Government and its exercise cannot be controlled or curtailed in any manner by a subordinate like Respondent No. 2. He, therefore, states that goods have been rightly allowed to be transhipped to Nagpur Airport by the customs authorities at Mumbai. He has invited our attention to the provisions of Chapter VI relating to conveyance carrying imported goods. He submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 8(a) and an officer is approved by the Commissioner of Customs for retaining custody in terms of Section 45, the Scheme of Customs Act cannot operate or be successful. It is in this background, he stressed importance of Section 33. The learned counsel states that though Central Government may declare an Airport to be a Customs Airport, that by itself is not sufficient to implement the other provisions of the Act and to control or supervise the movement or import of goods. He points out that the Managing Director of Petitioner No. 1 i.e. Petitioner No. 2 was aware of this Scheme and hence on 04.08.1997 sent a communication to the Competent Authorities to complete necessary formalities in this respect. He further contends that Section 33 which prohibits unloading except at approved place also carves out an exception and the petitioners could have sought permission of proper officer for unloading machine at a place which was not approved. He submits that the petitioners deliberately did not obtain such permission. He further contends that arrival of machine at Nagpur Airport in the night hours i.e. at 9.30 P.M. is admitted and hence, it is beyond office hours or working hours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in the case of Nivaram Pharma Pvt. Ltd. vs. CEGAT, Madras, reported at 2008 (12) S.T.R. 98 (Mad.) and Division Bench of this Court in the case of Indoworth India Ltd. vs. CESTAT, Mumbai, reported at 2010 (253) E.L.T. 364 (Bom.), present writ petition cannot be and could not have been entertained. An order dated 10.09.2012 in Writ Petition No. 5410 of 2011 (M/s. GMMCO Limited vs. Union of India thr. Ministry of Finance, New Delhi & Ors.) is also pressed into service. Lastly, it is urged that if this Court finds that cognizance could have been taken directly, the scope available for scrutiny under Articles 226 and 227 of the Constitution of India, is very limited. The findings reached by Respondent No. 3 cannot be substituted until and unless the same are shown to be perverse. He further argues that admitted facts show the breaches and, hence, the impugned order cannot be interfered with. 8. In reply, Shri Kothari, learned counsel submits that in writ petition, initially only notice before admission was issued and the matter came to be admitted after hearing the respondents. The respondents did not raise any objection on account of availability of an alternate remedy at that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commencement of full fledged cargo operations at Nagpur. In the impugned order, this communication again finds mention to draw an inference that the Managing Director of Petitioner No. 1 was fully aware of the fact that the Airport at Nagpur was not approved for loading of export cargo and unloading of imported cargo, and still he issued the directive to deliver the goods in question at Nagpur Airport without taking prior permission under Section 34 of the Customs Act, 1962. The respondents have not produced this letter on record. The petitioners were duty bound to assail this finding and, therefore, produce that communication, however, they also have failed to do so. 11. The perusal of above mentioned 1995 Transhipment Regulations show that those Regulations are framed under Section 157 read with Section 54(3) and Section 158 of the Customs Act and notified in gazette on 28.09.1995. Thus, these Regulations were in force on 31.08.1997 when machine reached Mumbai Airport from Frankfurt or then at Nagpur on 01.09.1997. The petitioners, have in para 10 of their petition, referred to Transhipment permit issued by the Customs authorities at Mumbai. They have also contended that this w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondents themselves authorizing Transhipment and, therefore, allowing unloading of imported machine at Nagpur. This transhipment permit is later in point of time & emanates from the competent authority. In the impugned order, this Transhipment permit or then implications flowing therefrom are totally lost sight of. At this stage, we feel that communication dated 04.08.1997 sent by Petitioner No. 2 needed to be evaluated in the impugned order in the background of this Transhipment permit which obviously is a later & more clinching document. That has not been done. In show cause notice itself, the respondent no. 2 & 3 mention that M/s. Indian Airlines have on 5.9.1997 forwarded a photocopy of a general bond executed by them for transhipment & note that the machine in question was covered under the transhipment permit. But then the impugned order does not evaluate or appreciate this fact. 13. During arguments, the learned ASGI has urged that for violations, which attract confiscation under Section 111 or penalty under Section 112, "mens rea" is not an essential ingredient. He relied upon Section 138A which presumes an culpable mental state in the accused in any prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Authorities. The Customs station is defined in Section 2(13) to mean a customs port or customs airport or land customs station. Section 2(10) defines "customs airport" to mean airport appointed under clause (a) of Section 7. Section 8 employs the word "may" thereby giving discretion to the Commissioner of Customs to approve proper place in any customs airport for the purposes of loading and unloading. When all these provisions are harmoniously construed, it is apparent that on 16.05.1997, Airport at Nagpur became a customs airport and, therefore, customs area / customs station. Whether loading or unloading is to be allowed in the area of entire airport or then it should be restricted to its particular part/ parts, is the decision which can be taken by the Commissioner of Customs in terms of Section 8. If airport is small, he may approve entire airport as a proper place for loading/ unloading. If airport is large, he may restrict the loading and unloading of dutiable goods to more than one portions of its area as per operational demands. 16. It is in this perspective that Section 45 needs to be approached. Said section is in Chapter VII which is about clearance of imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce there is also a place which can be shown as nonapproved place for such unloading within the very same airport. Section 34 is about unloading under the supervision of customs officer. Section 36 prohibits unloading after working hours. Looking to defence of the respondents, it is apparent that they had absolutely no arrangements & therefore, no officer to supervise such unloading and similarly they had no working hours for unloading at Nagpur customs airport. Their defence shows that all these arrangements have been made with effect from or after 28.10.1997. It can not be, therefore, said that S. 33 or S.34 stand violated in present case , that too at the instance of or by the petitioners who were never incharge of the aircraft. In any case, in the impugned order, the power to confiscate has been exercised only under Section 111(d) and (f) of the Customs Act, 1962. In other words, though in show cause notice Section 111(h) was also invoked, in the impugned order, confiscation is not effected under that provision. Section 111(h) permits confiscation for violation of provisions of Section 33 or Section 34. It is obvious that when confiscation is not under Section 111(h), it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion has been drawn by the learned ASGI while alleging its violation, show that it casts obligation upon a person in charge of an aircraft. The said section appears in Chapter VI which deals with conveyance carrying imported goods in which Sections 33, 34 & 36 are also placed. The perusal of all provisions in said Chapter show that the obligation is cast upon the person in charge of such conveyance. The petitioner before us was not a person in charge of aircraft carrying the machine to Nagpur. Section 30 read out to us requires person in charge of aircraft to deliver to the proper officer an import manifest prior to arrival of the aircraft. Subsection (1) of Section 30 containing this obligation is substituted with effect from 14.05.2003. Section 30 as it stood at the relevant time requires the person in charge to deliver to the proper officer such import manifest within 24 hours after arrival of an aircraft at customs station i.e. customs airport. Here, the aircraft arrived at the Nagpur customs airport at 9.30 P.M. on 01.09.1997 and the respondents were informed about arrival of said machine on 02.09.1997 itself. The impugned order, rightly, nowhere alleges violation of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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