TaxTMI 
TaxTMI 
2023 (1) TMI 513
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....sed in the appeal by the Commissioner of Customs (Appeals) imposing penalty under Section 116 of the Customs Act, 1962. The Petition arises from the penalty imposed on the Petitioner on the short-landing of goods loaded in a conveyance for importation into India. 3. At the relevant time, the Petitioner was the agent of one Pacific International Lines (Pte) Ltd. Singapore who owned vessel 'M.V. Kota Raja'. The Petitioner filed an Import General Manifest (IGM) as an agent of the M.V. Kota Raja upon arrival of the vessel at the Mumbai, Port with a cargo of containers. The IGM No. 8808, dated 15 March 2001, containing Item No. L-27,31,38,39,40 and 199 is the subject matter of controversy. 4. The Petitioner received notice on 20 August 2001 from the Assistant Commissioner of Customs, Manifest Clearance Department, Mumbai. The notice stated that the Mumbai Port Trust reported that certain items stated in the schedule appended to the notice and which were entered in the IGM of vessel M.V. Kota Raja, which arrived on 15 March 2001, were short-landed. The Petitioner was called upon to state why action should not be initiated against the Petitioner under Section 116 of the Act of 1962. The....
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....Appeal before the Commissioner of Customs (Appeal). Before the Appellate Authority, the Petitioner contended that there were several intermediaries like the slot steamer agents, and the persons responsible for any shortage should be the agents who have done stuffing of the containers, especially when the container is received with the seals intact. The Petitioner contended that the Petitioner was the main line agent who had received the container in a sealed condition. The Petitioner submitted that though short-landing is not denied, there was no justification for penalizing the Petitioner when it has nothing to do with the stuffing of the containers. The Petitioner reiterated the stand that the slot agents, were called for a hearing but there is no findings in the impugned order regarding their liability. The Appellate Authority considered these contentions and observed that as per Section 116 of the Act of 1962, the Person-In-Charge of the conveyance is responsible for the short-landing; therefore, there was no error in the impugned order. The contention of the Petitioner that a flat 200% fine was imposed, which is the maximum limit, was rejected on the ground that the fine was w....
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....om CR 151 whereby certain guidelines were laid down for the benefit of Customs Authorities, Bombay Port Trust Authorities and the person in charge of conveyance and their agents in the case of levy of penalty on short-landing of goods. The learned Counsel for the Petitioner submitted that the Authorities have not properly appreciated the guidelines laid down in the decision of M/s. Shaw Wallace. The learned Counsel submitted that the relevant provisions regarding the steamer agent's liability in case of short-landing have to be meaningfully read. The learned Counsel submitted that merely because the Petitioner had submitted the IGM, the Petitioner could not have been straightway held liable without considering that the IMG was prepared based on Bills of Lading issued by the slot agents who are actual consignees. The learned Counsel submitted that it is an admitted position that the containers were in sealed condition, and the Petitioner had no access to the goods in the said containers and had gone by the Bills of Lading of the slot agents. The learned Counsel submitted that the provisions of the Act relied upon by the Customs Authorities are on the statute books since the year....
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....s, 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." (emphasis supplied) Section 116 of the Act refers to the Person-In-Charge. Section 2(31) of the Customs Act, 1962 defines Person-In-Charge thus :- "(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 aircraft; (c) in relation to a railway train, the conductor, guard or other person having the chief direction of the train; (d) in relation to any other conveyance, the driver or other person-in-charge of the conveyance". (emphasis supplied) Thus as per Section 116 of the Customs Act, the person in charge of the conveyance is responsible for short-landing. This has to be read with Section 148, which deals with the liability of an agent appointed by the person in charge of a conveyance. It lays down that where the Act requires anything to be done by the person in charge of a conveyance, it may be done on his behalf by his agent. An agent appointed by the person in charge of a conveyance and any person who repr....
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....arrives in sealed condition. This has been Petitioner's consistent case. The Petitioner in response to the show cause notice has taken this defence and had even given the details of the slot agents M/s. Liberty Marines Syndicate Pvt. Ltd., Globe Link W.W. India Pvt. Ltd. and M/s. Schenker India Ltd. These slot agents were directed to remain present for the hearing before the Assistant Commissioner, and the Assistant Commissioner (Customs) had given them the opportunity and heard the slot agents as well. Thereafter, the Commissioner (Customs) passed an order wherein there was no bifurcation of liability though the order was sent to the Petitioner and these three slot agents. It is the Petitioner who took up the challenge to the order, as according to the Petitioner, since the Petitioner is a reputed firm, it did not want the stigma of the order of penalty. The factual aspect as to the role of enquiry thereafter was not undertaken, and by the order in Appeal and the Revisional orders, the Order-in-Original was confirmed. According to the Petitioner, provisions of the Act regarding the liability of the Agents for penalty and confiscation should be meaningfully read so as to includ....
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....as in respect of Item No. 107 which was manifested by slot steamer agent Supreme Maritime Agencies Pvt. Ltd. Since the said steamer agent did not explain the short-landing to the satisfaction of the adjudicating authority, the penalty was imposed on them and not on the vessel owners' agent James Mackintosh & Co. Pvt. Ltd. who had filed the IGM. (5) In the third order dated 6 September 2002 passed in the revision application filed under Section 129DD of the Customs Act, once again James Mackintosh & Co. Pvt. Ltd. had filed IGM as vessel owners' agents. However the short-landed Item Nos.22,25 and 87 of the said IGM were manifested by different steamer agents. The said steamer agents appeared before the adjudicating authority and penalty for short-landing was imposed on these and not on the vessel agent who had filed the IGM. In the revision application filed by one of the steamer agents, the penalty was set aside on facts. However it can be seen from this order that the revisional authority noted the guidelines set out in Public Notice No.50 dated 20 March 1992 which are the guidelines set out in the judgment in Shaw Wallace & Co. Ltd. vs. Asst. Collector of Customs & Anr. 1986....