9911796707
TMI Blog1998 (4) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... r deficiency, in the goods". 2. M/s. India Steamship Company Limited, the appellant herein, [hereinafter referred to as `the appellant-company'] was the owner of the sea-going vessel known as `M.V. Indian Resolve'. On its voyage from United Kingdom Continental ports to Calcutta Port it touched the ports at Bombay, Colombo, Madras and Visakhapatnam. The ship was carrying cargo imported for delivery at different Indian ports including the Port of Calcutta. When the vessel arrived at the Port of Calcutta Peter Sherazee, the Purser of the vessel, handed over the Bonded Stores List of the vessel to the Customs officer. The said list mentioned the items of bonded stores and their respective quantities. The said Bonded Stores List stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ventive (Adjudication), Calcutta, issued a notice to the appellant-company wherein it was stated that 45,000 cigarettes were found short in the Bond-Room of the vessel on November 4, 1974 and that no satisfactory explanation was forthcoming from the appellant-company for the alleged shortage. In the said notice it was further stated that it is reasonably believed that the said cigarettes had been removed clandestinely from the vessel while she was in port. By the said notice the appellant-company was called upon to show cause why the vessel should not be confiscated under Section 115(1)(e) and why penal action should not be taken under Section 112 of the Customs Act. The appellant- company submitted a reply to the said notice wherein the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was allowed by the learned single Judge by judgment dated January 11, 1977 and the order dated August 23, 1975 passed by the Additional Collector of Customs insofar as it related to confiscation of vessel under Section 115(1)(e) of the Customs Act was set aside. The learned single judge held that 45,000 cigarettes which were found missing were insignificant portion of the imported goods which were being carried in the vessel and even if their loss was not only accounted for, Section 115(1)(e) was not attracted for the confiscation of the vessel. The learned single Judge upheld the penalty of Rs. 10,000/- imposed on Peter Sherazee under Section 112 of the Customs Act. The respondents filed an appeal before the Division Bench of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the items or varieties be found missing, the Customs authorities would be entitled to invoke Section 115(1)(e). If we do not adopt this interpretation, we shall not be giving effect to the object the legislatures had in view, namely, the prevention of smuggling." Feeling aggrieved by the said judgment the appellant-company has filed this appeal. 3. Shri Dipanker Gupta, the learned Senior Counsel appearing for the appellant-company, has urged that the expression "substantial portion" in Section 115(1)(e) of the Customs Act must be construed to mean substantial portion of the goods which have been imported in the vessel. The submission is that the learned single Judge was right in proceeding on that basis and that the Division Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; x (e) any conveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing, unless the master of the vessel or aircraft is able to account for the loss of, or deficiency in, the goods." 5. The said provision in Section 115(1)(e) differs from the earlier provision contained in clause (4) of Section 167 of the Sea Customs Act, 1878 which provided for the penalty of confiscation of the vessel in respect of following offences :- "4. If any vessel which has been within the limits of any port in India or within the Indian customs waters, with cargo on board, be afterwards found elsewhere in such waters or in any port, bay, river, creek o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration where 100 tonnes of wheat and 4 gold bars were imported in a vessel and out of the 4 gold bars 3 gold bars were found missing and have observed that in such a case if we go by the quantity of the imported goods the owner of the vessel cannot be punished by confiscation of the vessel itself even though smuggling of 3 gold bars has taken place and that this could not have been the intention of the legislature. In our opinion, the said illustration does not pose any difficulty because the expression "substantial portion of such goods" in Section 115(1)(e) has been used to mean substantial portion of the goods that have been imported keeping in view the quantity as well as the value of the goods that have been imported. If it is found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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