TMI Blog2023 (11) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... tug Century Star-1, or the person in-charge was associated with the alleged illegal import of cruise vessel Pandaw-IV. Further, there is no finding recorded in the impugned order so as to implicate the tug Century Star-1 as well as M/s. Century Shipping Ltd. of any wrongdoing in law with regard to the lapse of non-filing of IGM for vessel Pandaw-IV. Moreover, there is nothing to even remotely connect them with any omission, aiding or abetting or to impute any previous knowledge on their part hence. Under the circumstances no case can be made out for imposition of penal liability under Section 112(a)/112(b) of the Customs Act on the appellants. Given the fact, that all approvals and permission for promoting inland river tourism with the help of cruise vessel Pandaw-IV were duly applied for and obtained from all concerned government agencies, as well the Kolkata Port Trust, and presented to the authorities, to impute the charge of smuggling for non-compliance of IGM formalities, at best can be merely theoretical. It is evident that there is no mens rea or any premediated thought in non-complying with the statutory requirements, as no duty was actually payable upon import, bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agent, M/s. B. Ghose Co. Pvt. Ltd., who too could not produce any evidence with regard to grant of entry inward permission for the said vessel Pandaw-IV. It was gathered that the tug Century Star-1, owned by Century Star Shipping Ltd. had towed Pandaw-IV from Myanmar (Yangon) to Sagar Road. During the earlier round of litigation the learned adjudicating authority ordered confiscation of the tug Century Star-1, under Section 115(2) of the Customs Act, confiscation of vessel Pandaw-IV for violation of section 111(a), (b), (d) and (h) of the Customs Act, 1962 The Act . Both the tug and the vessel were however given an option to redeem on payment of redemption fine. Penalty under Section 112(a) and/or 112(b) were also imposed on M/s. Century Star Shipping Ltd., M/s. B. Ghose Co. Pvt. Ltd. and M/s. Pandaw Cruise Co. Ltd. amongst others. 3. As during the earlier round of litigation the appellants had waived the issuance of show cause notice and personal hearing, the Tribunal noted that the submissions made before it, by the appellants, could not be considered by the adjudicating authority and therefore it remanded the matter to the adjudicating authority and ordered the issue to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pandaw Cruise Pvt. Ltd. to M/s. B. Ghose Co. Ltd., appointing the latter as the inward agents for arrival of Pandaw-IV under tug tow. Also placed on record was a copy of letter from B. Ghose Co. Pvt. Ltd., shipping agent to the Harbour Master (River), KOPT intimating that Pandaw-IV alongwith the tug Century Star-1, had reported with official No. 8388 GRT 563.2 beside seeking permission for detaching Pandaw-IV so that she can be tied up to any suitable mooring point and also to allow Century Star-1 to proceed to Kolkata, wherein they also undertook to pay the necessary port charges. The letter from Raj Singh, Director of M/s. Pandaw Cruise India to M/s. B. Ghose Co. Pvt. Ltd. annexed therewith a copy of the MOU entered into with IWAI duly signed by representative of Pandaw Cruise and the subsequent allocation of mooring point for Pandaw- IV approved by IWAI at B.I.S.N. Jetty, adjacent to the ship M/V Homibhaba. Amongst other factual documentation placed on record was a copy of the MOU entered into with the Bihar State Tourism Corporation Ltd., letter from Dy. Director IWAI to Second Secretary (HOC) Embassy of India, Yangon, Myanmar, recommending the processing of the visa appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia and therefore it was anticipated that in usual course the owner of Pandaw-IV would be filing the IGM and comply with other requisite Customs formalities. They specifically pointed out that there certainly was nothing to even remotely suggest any adverse findings in regard to attempted illegal usage of the said cruise vessel and therefore had it been in their knowledge that Pandaw-IV would fail to comply with IGM formalities, no B/L for towing the same by Century Star-1, would have been issued or alternatively the same would have been complied with when IGM for the tug Century Star-1 and other boarding formalities were observed. 5.3. In defence of charges levelled against M/s. B. Ghose Co. Pvt. Ltd. they inter alia stated that they were engaged as steamer agent of Pandaw- IV through an e-email dated 07.05.2009, but in reply to their e-mail dated 08.05.2009 seeking particulars and details of the vessel, the owner of the vessel failed to furnish the crew list, other particulars of the vessel required to handle as steamer agent, that the vessel would arrive unmanned upto Sagar Road towed by Century Star-1 the tug, and from Sagar Road to Kolkata the vessel would arrive on i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inward agent for vessel Pandaw-IV, arrived under tug-tow from Myanmar to Kolkata, M/s. B. Ghose and Co. Pvt. Ltd. have been held responsible for non-filing of vital Customs documents like IGM. It be noted that the Bill of Lading and others formalities like the appointment of foreign crew at Sagar Road was however complied with, by M/s. Pandaw Cruise Co. Ltd. We note that necessary approval with regard to River Cruising for the development of inland river tourism in the state of Bihar and West Bengal and approval of various agencies like Inland Waterways India Ltd., Government of West Bengal, Government of Bihar, Kolkata Port Trust were duly taken and they had merely overlooked the observance of the customs compliances. As for the role of tug Century Star- 1, it is an undisputed fact that it brought the Cruise vessel Pandaw-IV from foreign land to India up to Sagar Point. No compliance with the import processes and laws was required to be met out at the point of detachment of the tug and the cruise vessel- it being no landing point. The tug s own entry into India perse has not been found to be deficient in law by the lower authority. 9. The most question revolves around the premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or in the carriage of any smuggled goods shall be liable to confiscations, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal: PROVIDED that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be. Explanation: In this section, market price means market price at the date when the goods are seized. 11. We note that for the unintended omission on the part of the Steamer Agent, the tug Century Star-1 cannot be confiscated under Section 115(2) of the Customs Act, in as much as nothing has been brought on record to implicate the appellant or his agent or the person in-charge of any prior knowledge or connivance with regard to non-filing of the requisite documents by the steamer agent. For the reason, the confiscation of tug Century Star-1, cannot be upheld and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vessel under Section 115(2) of the Customs Act. We are unable to agree with this submission, because, in the absence of a finding that the negligence on the part of the owner or the Captain of the vessel was with a view aid or abet the act of smuggling, no action could be taken against the owner of the vessel or the master of the vessel. In the present case, having found that there is no nexus between the negligence and the act of smuggling, the Adjudicating Authority has not levied any penalty on the Owner/Captain of the vessel. There is no finding recorded in the order in original that negligence on the part of the Owner/Captain was deliberate with intent to facilitate the smuggling activity. Under these circumstances it is not possible to uphold the confiscation of the vessel. 12. Further, there is no finding recorded in the impugned order so as to implicate the tug Century Star-1 as well as M/s. Century Shipping Ltd. of any wrongdoing in law with regard to the lapse of non-filing of IGM for vessel Pandaw-IV. Moreover, there is nothing to even remotely connect them with any omission, aiding or abetting or to impute any previous knowledge on their part hence. Under the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 111(f) are not at all attracted. Consequently, the appellant is not liable to any penalty under Section 112(a)/(b) of the Customs Act, 1962 either, 14. In view of our findings and the precedent decisions, we are thus convinced that the present case does not call for subjecting penal liabilities on the appellants. Also in the case of Shahi Containers Vs. Commissioner of Customs (Import), Mumbai 2003 (158) ELT 51 T (Mum.). , it was categorically held that going by the language of Section 2(31) of the act, the responsibility for filing a complete and/or correct manifest was incumbent upon the Master of the vessel. The steamer agent as well as the slot charterer could therefore not be held as responsible thereto and penalties imposed thereon were set aside. Further, with regard to imposition of penalty the Hon ble Calcutta High Court in the case of Extrusion Vs. Collector of Customs, Calcutta 1994 (70) ELT 52 (Cal.) , had inter alia observed that: It was well-settled that in the matter of imposition of redemption fine and/or penalty, mens rea and/or conduct and/or attendent extenuating circumstances are material and relevant. Imposition of fine, in effect, amounted to awardi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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