Custom, Excise & Service Tax Tribunal
Shaan Marine Services Pvt.Ltd vs Commissioner Of Customs (Import) on 2 January, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. II APPEAL No.C/86429 & 86430/13 (Arising out of Order-in-Appeal Nos.146/MCH/ADC/IMPORT NOTING/2013 dated 18/02/2013 & 147/MCH/ADC/IMPORT NOTING/2013 dated 18/02/2013 passed by Commissioner of Customs (Appeals), Mumbai) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) ========================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental: Yes authorities?
========================================
Shaan Marine Services Pvt.Ltd., Appellant
Vs.
Commissioner of Customs (Import),
Mumbai Respondent
Appearance:
Shri.J.S.Sanghvi, Consultant for appellant
Shri.M.K.Mall, Asst. Comm. (AR) for respondent
CORAM:
Honble Mr. P.R. Chandrasekharan, Member (Technical)
Date of Hearing : 02/01/2015
Date of Decision : 02/01/2015
ORDER NO
The appeals are directed against Order-in-Appeal Nos.146/MCH/ADC/IMPORT NOTING/2013 dated 18/02/2013 & 147/MCH/ADC/IMPORT NOTING/2013 dated 18/02/2013 passed by Commissioner of Customs (Appeals), Mumbai. Vide the impugned orders, a penalty of Rs.60,800/- and Rs.2,58,200/- has been imposed on M/s.Shaan Marine Services Pvt. Ltd., the agent of shipping line and the goods imported have been confiscated under the provisions of Sections 111 (f) and 111 (g) of the Customs Act with an option to redeem the same on payment of fine of Rs.6,08,000/- and Rs.25,82,000/- in lieu of confiscation. Aggrieved of the same, the appellant is before me.
2. The facts relating to the case, briefly, are as follows:
2.1 The appellant is a shipping agent, filed an IGM No.2027597 dated 03/01/2012. One of the importers, namely, M/s.Indison Agro Foods Ltd., filed twenty bills of entry dated 06/01/2012 for import of consignments covered by the above IGM. However, vide letters dated 11/01/2012 and 13/01/2012, they intimated the shipping line that they would not be clearing the consignments and gave no objection certificate for getting the IGM amended. Consequently, the appellant filed an application for amending the IGM vide application dated 10/01/2012. The adjudicating authority allowed the amendment as requested on payment of fine and penalty as mentioned above, only on the ground that while issuing the fresh bills of lading in respect of new consignees, the number and date of the earlier bills of lading were repeated. Similarly, the invoices for the sale of the goods in respect of new buyers also bore the old invoice numbers and dates and therefore, the case was adjudicated. In appeal, the decision of the lower adjudicating authority was upheld by the Commissioner (Appeals). Hence, the appellant is before me.
3. The learned Counsel for the appellant submits that the amendment to IGM was necessitated because one of the importers decided not to lift the consignments and therefore, new buyers had to be found for the goods, necessitating change/amendment in the IGM. Section 149 of the Customs Act, provides that the proper officer may, his discretion, authorise any document, after it has been presented in the Customs House to be amended. Therefore, in terms of said section 149 the application of the appellant should have been allowed as the amendment was necessitated because of genuine commercial reasons and therefore, the question of holding the goods covered by the 20 bills of lading liable to confiscation under Section 111 (f) & 111 (g) of the Customs Act would not arise at all as the said provisions do not mandate confiscation in the facts of the case. Section 111 (f) envisages confiscation only when any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report, are not so mentioned. In the present case it is not the case of department that the IGM as originally filed and sought to be amended subsequently did not contain the details of the consignees. At the time of filing of the original IGM, the declaration made in the IGM was correct and true. Similarly Section 111 (g) applies to any dutiable or prohibited goods which are unloaded from a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45. It is not the case of department that the goods have been unloaded in contravention of provisions of Section 32 and therefore, the provisions of Section 111 (f) and 111 (g) do not apply at all to the facts of the case. Consequently, there is no liability to confiscation and no liability to penalty on the shipping agent. He also refers to Board Circular dated 11/03/2005 wherein it has been stated that changing the importers/consignees name is a major amendment in IGM and major amendment can be made only with the prior permission of the proper officer and adjudication of the same. Only if the IGM is incomplete or incorrect, the question of violation of Section 31 would arise warranting imposition of penalty. In other words, if the IGM is complete and correct at the time of filing, there is no warrant to impose penalty for violation of Section 31. The learned Counsel also relies on the decision of this Tribunal in the case of Maersk India Ltd. Vs. CC, Sheva 2001 (129) ELT 444 (Tri-Mum) wherein also penalty was imposed on the application made for amendment of IGM and this Tribunal held that there is no act or omission rendering the goods liable to confiscation under Section 11 of Customs Act, 1962 and consequently no penalty can be imposed. Similarly, in the case of James Mackintosh & Co. Pvt. Ltd., Vs. CC, Mumbai 2004 (166) ELT 88 (Tri-Mumbai), an identical situation concerning the amendment to IGM was considered and it was held that when an application for amendment in IGM is made, the goods are not liable to confiscation under Section 111 (f) and 111 (g) of the Customs Act and consequently no penalty is imposable. The same ratio was followed in Laxmi Saw Mill Vs. CC, Tuticorin 2008 (224) ELT 312 (Tri-Chennai) and in Seahawk Logistics Pvt. Ltd. Vs. CC (Import) Nhava Sheva 2009 (247) ELT 527 (Tri-Mumbai). Accordingly, he pleads for setting aside the confiscation along with option for redemption and also penalties on the shipping agent in the impugned orders.
4. The learned Assistant Commissioner (AR) appearing for the Revenue on the other hand reiterates the findings of the lower authorities and submits that the issue of a fresh bills of lading and invoices giving the same numbers and dates of the old bills of lading and invoices is wrong and therefore, the appellant is liable to penalty and the goods liable to confiscation.
5. I have carefully considered the submissions made by both the sides.
6. In the facts of the case before me, it is clear that the amendment to the IGM was necessitated because one of the importers after filing the bills of entry chose not to clear the goods; therefore, the goods were required to be sold to new consignees and consequently, fresh bills of lading and invoices were required to be issued. It is in these circumstances, the appellant sought amendment to the IGM. There was no fraudulent intention on the part of the appellant to evade or avoid any Customs duty liability. As regards the invoices issued for the supply of goods are concerned that is the responsibility of the foreign supplier and the shipping line has nothing to do with it. As regards the issue of fresh bills of lading, it is true that new numbers and dates should have been given for the fresh bills of lading. However, this is a only technical error and does not reflect any fraudulent intention. In any case section 111 (f) deals with a situation where there is a deliberate misdeclaration in the import manifest filed which is not the case herein. Therefore, the provisions of the said section has no application whatsoever in the facts of the present case. Similarly, the goods were not sought to be unloaded in contravention in the IGM. Therefore, the provisions of Section 111 (g) are also not attracted. Since there was no fraudulent intention whatsoever and the applicant/appellant had made application for amendment to the IGM mentioning about the facts in its entirety, the said application for amendment should have been allowed by the proper officer in terms of the powers conferred on him. There was no warrant to hold the goods liable to confiscation and impose any penalty. In these circumstances, I find that the impugned orders are unsustainable in law. Accordingly, I set aside the same and allow the appeals with consequential relief, if any, in accordance with law.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) pj 1 7