Custom, Excise & Service Tax Tribunal
Mrs. Renu Arora vs Commissioner Of Customs (E), Mumbai on 5 December, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. APPEAL NO. C/176, 348/08 (Arising out of Order-in-Appeal No. 140/2007 Misc ACC dt. 7.1.2008 passed by the Commissioner of Customs (Appeals), Airport For approval and signature: Honble Shri A.K. Srivastava, 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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
=============================================================
Mrs. Renu Arora
:
Appellants
Mohd. Ali El Ariss
VS
Commissioner of Customs (E), Mumbai
Respondents
Appearance
Shri R.J. Majra, Advocate for Appellant
Shri S.M. Vaidya, Authorized Representative (JDR)
CORAM:
Shri A.K. Srivastava, Member (Technical)
Date of Hearing : 5/12/2008
Date of decision /12/2008
ORDER NO.
Per : Shri A.K. Srivastava, Member (Technical)
These appeals have been filed by Shri Mohd. Ali El Ariss, Cargo Manager, M/s. Gulf Air, Mumbai and Smt. Renu Arora, Manager Cargo, M/s. Jet Air Pvt. Ltd., Mumbai (General, Sales Agents for Gulf Air Cargo) against the Order-in-Appeal dated 31.12.2007 passed by the Commissioner of Customs (Appeals), Chatrepati Shivaji International Airport Sahar, Mumbai, by which he has upheld the penalty of Rs. 10,000/- each imposed on them under Section 112 and 117 of the Customs Act, 1962 by the joint Commissioner of Customs, U.B. Centre, ACC, Sahar Mumbai.
2. Heard both the sides and perused the records.
3. Since the issue involved in both the appeals is the same, these are taken up for disposal by the common order.
4. The brief facts of the case are that Airway Bill No. 072-58629023 was prepared in the name of Shri Mohammed Asif and it was subsequently found to be corrected by tampering the printed name, in the name of Shri Muhammed ali Madakkar Kurupillath without a dated signature by Gulf Air, Mumbai. This correction was done after one month of the arrival of the goods and even after the detention of the goods by the CIU and that too without permission of the Customs Authorities. No amendment was carried out in the IGM No. 351 dtd. 08.01.2007 filed with the Customs.
5. It is the contention of the appellants that an Airway Bill is not a part of a Cargo Manifest and also not a part of an Import Manifest and, therefore, amendment of an Airway Bill does not require permission of the Customs. It is their further contention that an Air-way Bill is a Cargo document issued by a carrier or its Cargo Agent. It is a documentary evidence of the conclusion of the Contract of Carriage. The validity of the carriers contract of carriage starts with the execution of the Air-way Bill and carrier contract expires, when the consignment is delivered to the consignee mentioned in the Air-way Bill. They stated that the Air-way Bill, being a contract between the supplier and the carrier, is a private document, the amendment whereof does not require permission of Customs. They further stated that the amendment in the said Air-way Bill was carried out under the written directions/instructions of the Station of Origin and they did not have any personal interest. They maintained that there is no justification for holding that they had aided and abetted the improper importation of the goods and, therefore, the penalty ought not have been imposed/confirmed.
6. The learned JDR reiterated the findings of the lower authorities below.
7. I have carefully considered the rival submissions. I reproduce below the extract of the Order passed by the Commissioner (Appeals):-
I have carefully gone through the facts of the case, grounds of appeal as well as submissions made at the time of personal hearing. The issue to be decided is whether an airway bill forms a part of IGM and whether airway bill can be amended without customs permission. It is observed that Rule 3 of Import Manifest (Aircraft) Regulation, 1976 provides that
1. Every import manifest shall
(a) be delivered in duplicate
(b) cover all the goods carried in the aircraft and
(c) consist of
(i) a general declaration
(ii) a passenger manifest
(iii) a cargo manifest
(iv) a list of private property in possession of the captain of the air craft and other members of the crew.
Further, Rule 4(1) of the said rules says that (1) The cargo manifest referred to in sub-clause (iii) of Cl.(c) of Regulation 3 shall be delivered in separate sheets in respect of the following categories of cargo-
(1) to be landed (2) unaccompanied baggage (3) Goods to be transshipped (4) same bottom orientation cargo From the above, it is evident that the IGM includes details of unaccompanied baggage. The airway bill, being a supplement to the cargo manifest, would form a part of the cargo manifest.
Also, rule 3 of Levy of fees (Customs Documents) Regulation, 1970, provides for payment of a fee of Rs. 10/- for amendment of import manifest or export manifest including supplement thereof.
As, airway bill forms a supplement of the cargo manifest which is a part of cargo manifest which in turn is a part of import manifest, its amendment is required to be done with customs knowledge and permission.
8. I agree with the above findings of the Commissioner (Appeals) and hold that the amendment in the Air-way Bill is required to be done with the permission of Customs. The IGM is filed giving the details of all the Airway Bills pertaining to the cargo on board the aircraft and the copies of the Airway Bills are enclosed with the IGM for correlation of the particulars stated in the IGM. This means that once the IGM containing the details of all the Airway Bill is filed alongwith the copies of these Airway Bills pertaining to the cargo on board, all such Airway Bills become part of IGM. Any amendment in Airway Bill after the IGM is filed will mean amendment in the IGM and hence, it will require permission of Customs, as provided in Section 30 of the Customs Act, 1962.
9. Having held so, I observe that the findings of the Joint Commissioner and the Commissioner (Appeals) do not indicate any direct involvement of the appellants in the improper importation of the goods. The appellants, being the employees, were bound to carry out the amendment of the Airway Bill as directed by the Gulf Air, Abu Dhabi (Station of Origin). They were not aware of the detention of the impugned goods by the Customs. If they had knowledge of detention, they would have perhaps never amended the said Airway Bill and/or issued the Delivery Order. Therefore, invocation of Sec.112 of the Customs Act does not appear to be justified in their cases.
10. Keeping in view the facts and circumstances, the cases deserve leniency. I reduce the penalty to Rs.1,000/- each on the appellants. This penalty is imposed on them under Section 117 of the Customs Act, 1962, for failing to comply with the provisions of Section 30 ibid.
11. The impugned order passed by the Commissioner (Appeals) is modified to the above extent. The appeals filed by the appellants are partly allowed.
(Pronounced in court on .) A.K. Srivastava Member (Technical) Sm 5