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M/s. Caravel Logistics Pvt. Ltd. Versus The Joint Secretary (RA) , Government of India, Ministry of Finance, The Commissioner of Customs (Appeals) , The Joint Commissioner of Customs (MCD) , The Deputy Commissioner of Customs (MCD)

2016 (6) TMI 626 - MADRAS HIGH COURT

Levy of penalty on person-in-charge of vessel or its agent - scope of the term agent / any other person - Import of MS Scrap/plates from UAE - Import General Manifest - entire manifested quantity of 797.37 MTS of MS Steel Scrap and 302.29 MTS of MS Plates, has not landed as all the 40 containers were found empty. - penalty proceedings for short landing of the goods has been initiated under Section 116 of the Act. - Held that:- A careful scrutiny of Sub-Section (2) of Section 148 of the Act makes .....

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be fulfilled by the agent appointed by such person-in-charge of the conveyance as well. - The import manifest is not a mere document of intimation of arrival of a vessel carrying imported goods but also contains a verified statement to vouchsafe for the truthfulness of the contents of the import manifest. The importance and significance of lodging import manifest can be gazed from Section 31 of the Act. - Lodging import manifest under Section 30 of the Act has a direct bearing upon the .....

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and hence liable to suffer the penalty as provided for under Section 116 of the Act. - Decided against the appellant. - Writ Appeal No. 712 of 2013, M.P.No.1 of 2013 and C.M.P.No.5880 of 2016 - Dated:- 1-6-2016 - Nooty Ramamohana Rao And M. V. Muralidaran, JJ. For the Appellant : Mr. S. Murugappan For the Respondents : Mr. V. Sundareswaran, Standing Counsel JUDGMENT Nooty Ramamohana Rao, J. This appeal is preferred against the order and judgment rendered in W.P.No.24045 of 2012 on 09.01.2013 by .....

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ed against the Order-in Original passed by the Joint Commissioner of Customs, Manifest Clearance Department, Custom House, Chennai dated 29.10.2010. 3. It appears M/s Komal Enterprises, Fathe Nagar, Hyderabad imported 110 containers of MS Scrap/plates from UAE supplied by M/s Habih Ullah, Dubai. Out of the above 100 containers, 40 containers are stated to contain 797.37 MTS of MS Steel scrap valued at ₹ 1,07,85,965/- and 302.29 MTS of MS Plates valued at ₹ 51,11,318/- involving a dut .....

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containers, their weight was 100 MTS, thus reflecting their ordinary tare weight. Thus, penalty proceedings for short landing of the goods has been initiated under Section 116 of the Act. A show-cause notice dated 15.04.2010 was drawn proposing to impose the penalty. After considering the explanation offered and the submissions made at the personal hearing afforded on 27.07.2010, the Primary Authority passed the Order-in-Original on 29.10.2010 imposing a penalty of ₹ 32,00,000/- under Sec .....

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sponsibility for the veracity of the contents of the bill of lading. It was further found, as a fact, that the Steamer agent had given the seal to their agent for fixing upon the container after stuffing. Thus, as per the bill of lading 40 containers are supposed to contain 797.37 MTS of MS Steel Scrap and 302.29 MTS of MS Plates, but such imported cargo has not landed. 5. An appeal against the Order-in-Original dated 29.10.2010 has been preferred before the Commissioner of Customs (Appeals), Cu .....

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und no merit in the assertion that the 40 containers have not been loaded at all with the cargo at UAE, the load port. In paragraph No.11 of the Order-in-Appeal, the Commissioner of Customs (Appeals) has clearly detailed that if empty containers and fully loaded containers were loaded in an improper and haphazard manner, then that would create imbalance in the load management of the vessel and optimum utilization of the space, which will definitely affect the smooth sailing of the vessel itself. .....

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ferred before the Government of India under Section 129 DD of the Act and the Government of India by its order dated 27.07.2012 rejected the revision. During the course of the said order, it was noted that in view of the provisions contained in Section 30 of the Act and the Import Manifest (Vessel) Regulations, 1971, the Import Manifest is liable to be considered as a basic legal document and hence declarations made therein are bound to be taken into consideration for purpose of further action u .....

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y his judgment, dismissed the said writ petition. Hence, this appeal. 7. Heard Sri.S.Murugappan, for the learned counsel for the appellant and Sri.V.Sundareswaran, learned counsel for the respondents. 8. It is urged before us by the learned counsel for the appellant that the seals applied to the 40 containers, which were unloaded were found to be intact and in such a case, no liability can be fastened on to the appellant. He placed reliance, in support of the above plea, upon the judgment render .....

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in "Marine Container Services Vs. Deputy Commissioner of Customs and another" (2005 TIOL 89 (Madras) ). 9. Per contra, learned counsel for the respondents, apart from subscribing to the reasoning applied by the learned Single Judge, placed reliance upon the Division Bench judgment of this Court rendered in "Chowgule Brothers Vs. Deputy Collector of Customs, Bangalore" (1996 (82) E.L.T. 204 (Madras) ). 10. The principal question which requires to be answered is whether the im .....

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fault of not unloading the goods loaded in conveyance. Section 116 of the Act, which has provided for the consequences flowing from not accounting for the goods, reads as under: "116. Penalty for not accounting for goods. If any goods loaded in a conveyance for importation into India, or any goods transhipped under the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity unloaded is short of the quantity .....

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r 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." 13. From the above provision, it is clear that if any goods loaded in a conveyance for importation into India are not unloaded at their place of destination in India and the failure to unload is n .....

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son acting on behalf of the person-in-charge of the conveyance. 15. Various expressions found in the statute have been defined in Section 2 of the Act, which was ushered in by the Parliament to curb the dents on the revenue caused. Sub-section 31 of Section 2 defines the expression person-in-charge in the following words: "(31) "person-in-charge" means, (a) in relation to a vessel, the master of the vessel; (b) in relation to an aircraft, the commander or pilot-in-charge of the ai .....

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ointed by the person-in-charge of a conveyance as well, which reads 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 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, .....

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Section 2 (31) of the Act, but Section 148 has also got to be read conjointly and it s contents are also to be noticed. Sub-section (1) of Section 148 of the Act sets out that where the Act requires anything to be done by the person-in-charge of a conveyance, the same may be done on his behalf by his agent. This provision is a mere reiteration of the 1st principle relating to Appointment and Authority of the agent contained in Section 182 of the Indian Contract Act, 1872, which clearly brings o .....

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uch 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 the Act. Thus, the liability to pay penalty set forth in Section 116 of the Act upon the 'person-in-charge' is, therefore, liable to be fulfilled by the agent appointed by such person-in-charge of the conveyance as well. Sub-section (2) of Section 148 proceeded further and also rendered any p .....

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vessel carrying imported goods or any other person specified by the Central Government by notification, in the case of a vessel deliver to the proper officer an import manifest prior to the arrival of the vessel. Sub-section (2) thereof further required the person delivering the import manifest to make and subscribe to a declaration as to the truth of its contents. Thus, the import manifest is not a mere document of intimation of arrival of a vessel carrying imported goods but also contains a ve .....

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ction (2) of Section 31 of the Act further makes it clear that no order under Sub-section (1) shall be given by the proper officer until the import manifest has been delivered. Hence, lodging import manifest under Section 30 of the Act has a direct bearing upon the controversy at hand. Thus, whoever lodges the import manifest with the proper officer of the Customs, acts as such, as an agent of the Master of the vessel. 20. From a conjoint reading of Sections 2 (31), 30, 31, 116 and 148 of the Ac .....

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quot;The scheme of the Act provides that the cargo must be unloaded at the place of intended destination and it should not be short of the quantity. Where it is found that the cargo has not been unloaded at the requisite destination or the deficiencies are not accounted for to the satisfaction of the authorities under the Act, the person-in-charge of the conveyance shall be liable in terms of Section 116 of the Act. Besides the person-in-charge of the conveyance, the liability could be fastened .....

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ealing with the cargo off-loaded from the aircraft of the appellants carrier." 22. Learned single Judge has followed the above principle enunciated by the Supreme Court in British Airways PIC s case (referred to supra) while dismissing the present writ petition, from out of which the appeal arises. 23. In fact, the Central Government by its Notification No.111/2003 Cus. (N.T.) dated 19.12.2003 as amended by Notification No.17/2004 Cus. (N.T.), dated 16.02.2004 under Section 30 of the Act, s .....

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the Central Government is in fact in consonance with the principle set forth on 06.11.2001 by the Supreme Court in British Airways PIC s case (referred to supra). 24. Now turning to the Judgment rendered by the learned Single Judge of Bombay High Court in Shaw Wallace and CO.LTD s case (referred to supra), over which heavy reliance was placed by the learned counsel for the appellant it is clearly distinguishable. 25. Certain guidelines as agreed to/suggested by the counsel for both sides have be .....

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