TMI Blog2016 (1) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... e needs to examined before resorting to confiscation and penalty. The systems are engineered to account for legal responsibility for cargo under international conventions. It is in the interests of the custodian and ‘person-in-charge’ of the conveyance to ensure that all documentation is complete before handing over and taking over of containers. That such did not occur is more likely to be attributable to inadvertence. Nor can any motive be ascribed as containerized cargo are not, in the holding area or aboard the vessel, susceptible to ingress. The law itself mandates confiscation and penal action for such mis-adventure and, as long as the law remains on the statute book, it must be enforced. The imposition of penalty on the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only on the 4th September 2006. The original authority held the goods liable for confiscation and imposed penalties of ₹ 5 lakhs on the exporter, ₹ 6 lakh on the customhouse agent and ₹ 12 lakh on the shipping company. 3. Learned Counsel for the exporting company contends that the goods were subject to examination at factory premises before stuffing in container and sealing for delivery at the port of loading. Likewise, on behalf of the Custom House Agent, it was contended that with the filing of checklist and the examination of seals at the gates of the load port, the container passed into the holding area where neither the exporter nor the agent had access to. It was further contended that this Tribunal, in Riya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, 1962. The scheme of collection of duties and prevention of smuggling is operated through the responsibilities and obligations that are enjoined upon various elements in the chain of imports and exports. Minimum regulatory intrusion into the international trade channel is ensured through this finely calibrated system. Hence, any deviation in prescription relating to control over goods and conveyances before export or, in case of imports, till clearance for home consumption is not merely procedure. Nevertheless, the facts and circumstances of each case needs to examined before resorting to confiscation and penalty. 7. Once the examination of the export consignment by the proper officer of Customs has been completed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the size of JNPT, Nhava Sheva, the system of loading and unloading of cargo is wholly mechanized and controlled by systems and procedures which do not easily admit to scope of human intervention for tampering to abstract or for verification before loading. Loading by inadvertence remains a possibility that cannot be ruled out. 10. The Customs Act is of 1962 vintage when containerisation was not even a gleam in the eye and the procedures which were, for those times, progressive enough to transform physical control of Sea Customs Act, 1878, to custodianship, may, to some extent, be mere formality in the era of containerization. Responsibility for ensuring loading after obtaining permission was cast upon the custodian and person-in-c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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