Custom, Excise & Service Tax Tribunal
Msc Agency India Pvt Ltd vs Kolkata(Port) on 11 March, 2020
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No.78643 of 2018
(Arising out of Order-in-Original No.KOL/CUS/AC/AC(MCD)/42 dated 16.10.2017
passed by Commissioner of Customs(Port), Kolkata.)
M/s. MSC Agency (India) Private Limited
(Diamond Heritage Building, Unit 1202-1205, 12th Floor,
16, Strand Road, Kolkata-700001.)
...Appellant
VERSUS
Commissioner of Customs(Port), Kolkata
.....Respondent
(Customs House, 15/1, Strand Road, Kolkata-700001.) WITH Customs Appeal No.78644 of 2018 (Arising out of Order-in-Original No.KOL/CUS/AC/AC(MCD)/41 dated 16.10.2017 passed by Commissioner of Customs (Port), Kolkata.) M/s. MSC Agency (India) Private Limited (Diamond Heritage Building, Unit 1202-1205, 12th Floor, 16, Strand Road, Kolkata-700001.) ...Appellant VERSUS Commissioner of Customs(Port), Kolkata .....Respondent (Customs House, 15/1, Strand Road, Kolkata-700001.) APPEARANCE Shri Kuldeep Mallick, Shri Sayan Ganguly & Ms.Debasri Mallick, all Advocates for the Appellant (s) Shri S.K.Naskar, Authorized Representative for the Respondent (s) CORAM: HON'BLE SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) FINAL ORDER NO. 75332-75333/2020 2 Customs Appeal Nos.78643 & 78644 of 2018 DATE OF HEARING : 19 September 2019 DATE OF DECISION : 11 March 2020 P.K.CHOUDHARY :
Brief facts of the case are that a show cause notice was issued on 11.04.2017 to the Steamer Agent M/s.MSC Agency (India) Pvt.Ltd. Address-Diamond Heritage Building, Unit 1202-1205, 12th Floor, 16, Strand Road, Kolkata-700001, Port of discharge Agent of the Shipper BIGSTAR ALLIANCE L.P. ON BEHALF OF AGROZAN COMMODITIES DMCC, DUBAI-UAE. for short landing of goods agsint Rotation No.- 2141226/16 dated 01.07.2016 of M.V. VEGA DELTA with reference to the Custom Transit Declaration (CTD) No.S51/4422/J/16A dated 01.07.2016. On the basis of the CTD and Joint Survey Report, the details of the short landed goods are as follows:-
Line Bill of Consignee No. of Quantity and Shortage Assessable Amount of No. Lading Containers Description of goods value of Duty on (Quantity short landed short landed Numbers) goods goods (In INR) (In INR) M/s.Bagmati MSCU0244 Overseas 11 21 9699 Biratnagar - 246510 Kgs 230100 Rs.69,67,163 Rs.52,25,372 02, Morang, Rape Seeds Kgs.
Nepal The amount of total duty involved for the said Line No.21 is Rs.52,25,372/- as mentioned in the show cause notice. The total assessable value of short landed 230100 Kgs of Rape Seeds against Line No.21 is Rs.69,67,163/- involving duty of Rs.52,25,372/-.
A joint survey was conducted on 15.07.2016 at 2, N.S. Docks, Kolkata Port by the following persons:-
1. Mr.Pankaj Mishra and Mr. Ravi Shankar Singh on behalf of M/s.Agrozan Commodities, India
2. Mr.Shrikanta Ghanta on behalf of M/s.Intertek India Pvt.ltd., appointed by Agrozan
3. MD. Naushad on behalf of Master Marine Services Pvt.Ltd. (Liner-MSC Agency (India) Pvt.Ltd.)
4. Mr. Vinay Kedia on behalf of M/s.Global Insurance Surveyor's and Engineers (United Insurance Co/Nepal Ltd.)
5. Mr.Binay Kr. Parakh on behalf of Consignee M/s.Bagmati Overseas,
6. Mr.Swadhin Banerjee on behalf of CHA M/s.SKB Shipping & Logistics Pvt.Ltd.3
Customs Appeal Nos.78643 & 78644 of 2018
7. Mr.Samit Biswas on behalf of M/s.Wilson Surveyor and Adjusters Pvt.ltd. (Cargo Under Writer M/s.AON Special Risks Solutions) The survey was carried out on noticing the shortage of goods. The joint survey report dated 15.07.2016 states, "above all 11 X 20' FCL containers were apparently intact condition. Seals as per BL affixed on containers door".
The joint survey report of 15.07.2016 states:
".... on opening the containers (In presence of Customs Authority) it was found that all the containers having 2 to 4 cut/holes (Approx 3" to 6") on the floor. During inspection of under structure it was found that the holes of floor (both 1st ply and cross member - 4 to 6) of containers were blocked by plywood sheet duly fixed by screws and pointed with black colour ......."
2. In reply to the show cause notice, the Steamer Agent stated that they have fulfilled their obligation under the contract of carriage in this shipment. According to them after the discharge of the containers it is the responsibility of the consignee to comply with the port and customs rule by paying statutory dues and take delivery of goods. They have said that there is a clear endorsement in the Bill of Lading that particular furnished by the Shipper were not checked by the carrier and carrier is not responsible under clause 14 of the Bill of Lading. Therefore, carrier is not held liable for any misdeclaration or fraud made by the exporter/consignee or their agents. According to them cargo is for final destination to Nepal under Transhipment Permit discharged at Kolkata and all these containers were discharged and delivered in seal intact status to consignee and their authorized Customs House Agent.
They have also cited the following case laws including the case in the High Court of Judicature at Bombay in Writ Petition No.1844 of 1993, decided on 04.11.2003 in the case of Seahorse Shipping & Ship- Management Pvt.Ltd. Vs. Union of India 2004 (163) E.L.T. 145 (Bom.), whereby it has been held that in case of short landing of goods alleged when seals of containers are found intact shipping agents cannot be 4 Customs Appeal Nos.78643 & 78644 of 2018 made liable and penalty cannot be levied solely based on the outturn report of B.P.T. Penalty was set aside as imposed under Section 116 of Customs Act, 1962.
M/s.MSC Agency (India) Pvt.Ltd. have said that Section 116 of the Customs Act is not applicable in the subject case for reasons as cited above. According to them no duty is involved in the case, the cargo was meant for Nepal Transit and not Indian Import. They have also said that they are not the owner of the vessel carrying the consignments and therefore they are not liable for the short shipment as they were acting as agent of the container owner.
3. The learned adjudicating authority vide Order No.KOL/CUS/AC/AC(MCD)/42 dated 16.10.2017 imposed a penalty of Rs.10.00 Lakhs on the Steam Agent M/s.MSC Agency (India) Ltd. under section 116 of Customs Act, 1962 for short landing of goods.
4. Being aggrieved with the said order, the present appeal has been preferred before this Tribunal.
5. I have heard Shri Kuldeep Mallick, Shri Sayan Ganguly & Ms.Debasri Mallick, learned Advocates for the appellant and Shri S.K.Naskar, learned Authorized Representative for the Respondent department and have perused the appeal records.
6. In the impugned Bill of Lading No. MSCU0244 9699, the term 'Shippers Load Stow & Count' is mentioned in the description. As long as the seal has not been altered or tampered with, the carrier cannot be held liable for the shortage because the carrier was not present at the time of the packing of the container and carrier does not know what the shipper loaded, stowed or counted. Bill of Lading shows details that was provided by the shipper.
7. 'Shipper's Load Stow and Count' is the term seen in the description of the Bill of Lading for the shipment. This term absolves steamer agent/carrier of any claim relating to damaged or missing cargo etc. 5 Customs Appeal Nos.78643 & 78644 of 2018
8. The appellant has also submitted documents like enquiry report etc. which shows that they were not responsible for any shortage etc. Moreover, the department also could not produce any proof against the Steamer Agent and imposed penalty mechanically.
9. On the basis of above discussion, the order Nos. KOL/CUS/AC/AC(MCD)/42 & KOL/CUS/AC/AC(MCD)/41 dated 16.10.2017 of the learned adjudicating authority are set aside and the appeals are allowed with consequential relief, as per law.
(Order pronounced in the open court on 11 March 2020.) SD/ (P.K.CHOUDHARY) MEMBER (JUDICIAL) sm