TMI Blog2013 (1) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... yance is responsible 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 41 containers were found empty and total quantity as per Bill of Lading was found short. The steamer agent is an agent of carrier, appointed under Section 148 of Customs Act, 1962 - Section 148 makes it clear that such agent shall be liable for fulfilment in respect of matter in question of all obligations imposed on such person-in-charge by or under this Act or any law for the time being in force and to penalties and confiscation which may be incurred in respect of that matter. As such steamer agent is liable to penal action under Section 116 ibid in this case matter. - Decided against assessee. - F. No. 373/84/SL/12/RA - 32/2013-Cus - Dated:- 22-1-2013 - Shri D.P. Singh, Joint Secretary Ms. S. Uma Maheswari, Advocate, for the Assessee. ORDER This revision application is filed by the applicant M/s. Econship Marine Pvt. Ltd., Tuticorin against the order-in-appeal No. 17/2012(TTN) dated 24-5-2012 passed by the Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41 containers whereas the BL quantity is about 853 MTS. Container booking for 44 containers load to Tuticorin was received from St. John, Malaysia by M/s. Econ, Malaysia and they too accepted the offer and M/s. Econ Malaysia provided 44 empty containers with seal to the transporter but three containers were not discharged at Tuticorin. The ocean freight has been paid by the Carriers, the appellant. Show cause notice dated 10-8-2011 was issued to the appellant to impose penalty under Section 116 of the Customs Act, 1962. After due process of law, the lower authority imposed a penalty of ₹ 18,58,922/- on the appellant under Section 116 of Customs Act, 1962 and imposed a penalty of ₹ 1,00,000/- on M/s. SRS Industries, Salem under Section 117 of the Customs Act, 1962. 3. Being aggrieved by the said order-in-original applicant filed appeal before Commissioner (Appeals), who upheld the impugned order-in-original and rejected the appeal. 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 on the following grounds: 4.1 The learned authorities have faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to export; and therefore to invoke quasi-criminal proceedings against the appellant who was not in charge of the cargo/containers at that point is without merit or basis. 4.4 The Adjudicating Authorities have dismissed the above letter from the Portklang Authorities on the frivolous ground that the letter to the Commissioner of the Customs House from the Portklang Authorities is dated earlier (10-8-2011) than the letter which encloses the list of weights of the exported containers. The document dated 16-8-2011 merely lists the weight of the containers prior to export and cannot in any way be called a verification report , and therefore the contention of the Adjudicating Authority is without merit. The Adjudicating Authorities have also stated that it has obtained copies of the export manifest, containing the details of the containers exported from Malaysia and the gross weight in one manifest was 3,85,000 kgs and in another manifest as being 4,18,000 kgs and that the FOB price value of the cargo exported was mentioned as RM 43254 and RM 46962. This is said to corroborate with the invoices showing the quantity and values declared in the manifests. The applicants submit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the Hon ble adjudicating authority to prove mens rea on the part of the appellants and that this burden has not been satisfactorily discharged. It is submitted that as per the wording of the section, it is only in the event that cargo has been loaded that there can be allegation of short landing made against the carriers, and a penalty be imposed in relation thereto. In a case where the cargo was never loaded at the point of export and in fact containers were shipped empty, it is not correct in law to impose a penalty on the carriers under Section 116 of the Customs Act, 1962. 4.7 The sealing of the containers as indicated in the Bill of Lading were in fact different from the numbers on the seals of the containers that were unloaded. That there was a discrepancy is not in question, but all responsibility for such discrepancy has blindly has been attributed to the applicants without a satisfactory investigation, by the adjudicating authority. In fact a perusal of the show cause will indicate that apparently an examination of the concerned containers was carried out on 10-6-2011 when the bills of entry are dated January of 2011. Further there appear to be no records on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. St. John. Now blaming them would not come to their rescue legally. As per Section 116 of the Customs Act, 1962, the penalty is imposed on the appellant who is the custodian of the cargo during the transit, for his failure of not properly accounting the cargo manifested. Hence, the appellant s arguments regarding the fact that the stuffing and sealing of the containers and the transport thereof was undertaken by the shipper, M/s. St. John Logistics would not come for their rescue and further scrutiny in this regard is unwarranted for imposing penalty under Section 116 of the Customs Act as desired by the appellant. 5.2 The appellants have agreed that the MBL for the said cargo was prepared by them, only based on the HBL, issued by the shippers. This itself is indicative of the fact that the appellants have not taken sufficient care to verify the cargo, mentioned to have been stuffed, by way of checking their weight in the HBL before issuing their MBL, and by the way of issuing the MBL based on the HBL they have shouldered the responsibility of properly delivering the cargo at the port of discharge while accepting the cargo instead of relying on the bona fide of the HBL issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by him at Malaysia against the shipper and freight forwarders do not give him any immunity against the penal action under Section 116 of the Customs Act, 1962. 5.4 The appellant s responsibility does not merely stop with providing the containers in which the cargo was stuffed. They have also issued an MBL and have accepted the responsibility of delivering the cargo properly at the port of delivery. Hence the action taken by them regarding the investigation into the sequence of events at the port of loading may help them to indemnify the loss incurred by them but it will not hinder the customs authorities from levying penalty under Section 116 of the Customs Act, 1962. Penal action under Section 116 of the Customs Act is not quasi-criminal in nature as stated by the appellant for the reasons already discussed above. It is difficult for the Customs authorities to investigate what happened at the loading port in a foreign country. Hence, the responsibility is fixed under Section 116 of the Customs Act on the carrier of the cargo for its safe and proper delivery. Hence, the allegation here is only that the carrier has failed to deliver the manifested cargo at the port of deliv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 13-12-2012, was attended by Ms. S. Uma Maheswari, Advocate on behalf of the applicant who reiterated the grounds of revision application. 7. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 8. On perusal of records Government observes that the adjudicating authority going through the case records observed that the applicants failed in proper accounting and discharge of the cargo manifest as 41 containers were landed in empty condition against invoices, Bill of Lading and IGM, etc., therefore he imposed a penalty of ₹ 18,58,922/- under Section 116 of the Customs Act, 1962. Commissioner (Appeals) upheld the order of lower authority and rejected the appeal of the applicants. Now the applicants have filed this Revision Application on the grounds as stated at para 4 above. They have mainly submitted that at the time of export containers were empty. They have also admitted that the sealing of the containers as indicated in the Bill of Lading were in fact different from the number on the seals of the containers that were unloaded. They claimed that they have not had a hand in such short landing/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport 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 stipulates that penalty is to be imposed for not unloading the goods which were loaded in the vessel for importation into India. As per the IGM, invoices and Bills of Lading the quantity of 853 MTs of Steel Turnings was loaded in the ship. It is on record that as per the said documents the gross weight in one manifest was 385000 kg. and in another manifest it was declared as 418000 kg. and the FOB value of the cargo exported was mentioned as RM 43254 and RM 46962 respectively which was corroborated with concerned invoices in terms of quantity and value. The port officials at Malaysia has also shown that 969.33 MTs had been loaded into 44 containers (three containers were not unloaded at designated port of Tuticorin). The applicants have already declared in the necessary Bills of Lading for these 41 containers and also submitted copies of export manifest in Malaysian Customs showing the containers were laden. Hon ble Bombay High Court judgment in the case of Shaw Wallace Co. v. ACC Others - 1986 (25) E.L.T. 948 (Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the time being in force, and to penalties and confiscations which may be incurred in respect of that matter. The said provision of Section 148 makes it clear that such agent shall be liable for fulfilment in respect of matter in question of all obligations imposed on such person-in-charge by or under this Act or any law for the time being in force and to penalties and confiscation which may be incurred in respect of that matter. As such steamer agent is liable to penal action under Section 116 ibid in this case matter. 12. Applicant has contended that there was no mens rea on their part and therefore penalty under Section 116 cannot be imposed. In this regard, Government notes that in terms of Section 116, penalty is imposed for not unloading the goods at port of import in India. There is no requirement of proving mens rea on the part of person-in-charge of vessel. In this case short landing/non-landing of goods is admitted by applicant. Therefore penalty is rightly imposed. 13. Government notes that for interpreting the provisions of law, Hon ble Supreme Court in the case of M/s. ITC Ltd. v. CCE, Delhi - 2004 (171) E.L.T. 433 (S.C.) and M/s. Paper Products Ltd. v. CCE, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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