Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs vs Parekh Marine Agencies Pvt. Ltd., ... on 25 October, 2000
Equivalent citations: 2001(73)ECC171
ORDER
S.S. Sekhon Member, (T)
1. These three appeals have been filed by Revenue against following findings of Commissioner on the following grounds:
Page 26 at paras 14, 15, 16, 17, & 18 M/s. Parekh Marine Agencies P. Ltd., have admitted the mistake. They have only pleaded that the mistake is technical in nature. They have stressed that it was the responsibility of M/s. Transworld Shipping Services (I) Pvt. Ltd., who are the slot agents for these goods to furnish the information. They have stated that it is the responsibility of M/s. Transworld Shipping Services (I) P. Ltd. to include the subject 4 containers in the Import Manifest Sheet before unloading from the vessel. I also find that M/s. Transworld Shipping Services (I) P. Ltd. have in their statement dt. 19.7.94, clearly admitted their responsibility. Therefore, it is clear that the main responsibility of declaring the containers in the IGM lies with M/s. Transworld Shipping Services (I) Pvt. Ltd. and not with M/s. Parekh Marine Agencies P. Ltd. Being the main agents of the vessel, they had to depend upon the slot agents or local agents M/s. Transworld Shipping Services (I) Pvt. Ltd. before making the declarations as regards the Import General manifest. Therefore there is merit in their submissions that they have not deliberately committed any 'act' or 'omission' as legally understood. However, the 4 containers should not have been unloaded from the vessel without being declared in the Import General Manifest and to that extent, M/s. Parekh Marine Agencies Pvt. Ltd. do not appear to have taken appropriate caution.
M/s. Transworld Shipping Services (I) P. Ltd., have stated that they had received a letter dt. 4.2.94, addressed to M/s. United Arab Shipping Co., from M/s. Allied Deals Inc., New York, to the effect that the subject 4 containers are to be discharged at Kandla instead of at Bombay port with the final destination ICD, New Delhi, and also with the name of the notified parties to read as M/s. Simpex Trading Co. P. Ltd. In other words, they had the knowledge that they were carrying these 4 containers in the vessel. Accordingly, there is no reason for them not to declare these containers in the Import General Manifest. If the goods were not meant for Bombay and meant for Kandla, there should have been a declaration to that effect. Besides, if the goods were at all meant for Kandla Port, there is no reason to unload them at Bombay, without declaring the same in the Import General Manifest. Besides, they had received a Fax message on 23.2.94 to the effect that the final destination of these containers should be Bombay. There is no reason for them to file the request for supplementary IGM as late as on 2.3.94. Thus, it is clear that M/s. Transworld Shipping Services (I) Pvt. Ltd., have violated the provisions of Section 30 and 32 of the Customs Act, 1962, by not delivering the import manifest of the subject goods within 24 hours after arrival of the vessel and by unloading the goods without mentioning the same in the import manifest. By the above Act, they have rendered the goods liable for confiscation under Section 111(f) & (g) of the Customs Act, 1962.
The Importer of the goods M/s. Simpex Trading Co. P. Ltd., have been insisting for early lifting of the seizure. The goods have been lying in the port for more than last six months. No evidence has been collected to indicate that M/s. Simpex Trading Co. Ltd., are in anyway involved in the above violations as alleged in the show cause notice. In fact, no show cause notice has been issued to M/s. Simpex Trading Co. Pvt., that they are suffering a lot without any fault of theirs especially when they have made all payments for the goods through their bankers as early as in March 94, appear to have some force. Accordingly, I do not confiscate the goods under Section 111(f) or (g) of the Customs Act, 1962, as there are a large number of judgments to the effect that merely on the ground that action against the goods is in rem an innocent person should not be made to suffer and even a small fine would amount to penalty not warranted by the circumstances.
The omission and commission on the part of the Steamer Agents is however, very serious. The reasons adduced by them regarding unloading of the cargo without permission and non-submission of proper declaration in the IGM within the stipulated time limit are not satisfactory or acceptable. Accordingly, I impose a penalty of Rs. 2,50,000 (Two Lakhs Fifty Thousand only) on M/s. Transworld Shipping Services (I) Pvt. Ltd., under Section 112(a) of the Customs Act, 1962. I have already observed that lapses on the part of M/s. Parekh Marine Agencies P. Ltd. are technical lapses and the same were due to the actions of M/s. Transworld Shipping Services (I) Pvt. Ltd., only. Therefore, I take a lenient view and do not impose any penalty on M/s. Parekh Marine Agencies P. Ltd., I however, observe that they should have taken care to see that the containers which have not been declared in the IGM are not unloaded at the Customs Port. I caution them to be careful in future and repetition of the lapse on their part will be followed by penal action.
I direct the Steamer Agents to file supplementary IGM for these containers to enable M/s. Simpex Trading Co. P. Ltd., to file necessary Bill of Entry for clearance of the goods in accordance with law after payment of necessary Customs duty.
On the grounds pages "8, 9, and 10
1. The issue involved in the case was not simply the penal action against the Steamer Agents and the slot agents but also liability to confiscation of the goods under import which were undoubtedly unloaded without having been shown in the IGM. The adjudicating authority has not discussed satisfactorily as to why the goods should not be confiscated under Section 111(f) and (g) of the Customs Act for violation of Sections 30 and 32 of the Customs Act.
2. M/s. Simpex Trading Co. (P.) Ltd., had no locus standi at all before the adjudicating authority; unless and until the IGM was supplemented and they were accepted as the consignee/notified party. Before discussing any claim of M/s. Simpex Trading Co. (P) Ltd. the adjudicating authority should have directed the proper officer to decide the matter of supplementary IGM and only after such amendment, if allowed, M/s. Simpex Trading Co. (P) Ltd. would have been recognised for any purpose.
3. In the circumstances of the case as discussed above the IGM would not have been allowed to be supplemented under Section 30(3), because there has been fraudulent intention in the case inasmuch as the reasons for change in consignee's name and not showing the goods at all in the IGM before unloading the same have not been explained at all. It has been decided by the Hon'ble CEGAT, WRB, Bombay in the case of Uniflex Cables Ltd. v. Commissioner of Customs, Bombay that if there is fraudulent intention in changing the name of the importer, the permission to change the import manifest cannot be granted. In the said case, M/s. Uniflex Cables Ltd. were the final consignee to be included in the IGM by way of amendment and the goods were already shown in the IGM in the name of other consignee who were not having IE code, but an amendment was disallowed by the Hon'ble Tribunal. In the present case we have a stronger case, as in this case in addition to the fact that earlier consignees are non-existing, the goods were not shown at all in the IGM at the time of unloading. So the question of allowing any supplementation of IGM in this case should not arise.
4. Once the IGM was not amended and M/s. Simpex Trading Co. (P) Ltd., were not recognised by the department a show cause notice was not issued to them. Inspite of this, M/s. Simpex Trading Co. Pvt. Ltd., have been discussed in the Order-in-Original and have been found innocent. The adjudicating authority is bound within the show cause notice and merits or demerits of any party who is not the noticee, is not to be discussed and decision taken thereon. The adjudicating authority could have decided the case having examined the role of the two noticees viz. M/s. Parekh Marine Agencies (P) Ltd. and M/s. Transworld Shipping Services (I) (P) Ltd., in the light of the violation of Sections 30 and 32 of the Customs Act, 1962 and should have decided the liability of the goods to confiscation and imposed penalty under Section 112 of the Customs Act, 1962, as deemed fit. However, if he felt that M/s. Simpex Trading Co. (P) Ltd. were also to be heard, he could have directed for finalisation of supplementary IGM first and thereafter could have heard them after issuing a show cause notice to them.
5. The imposition of penalty on M/s. Transworld Shipping Services (I) (P) Ltd. without finding the goods liable for confiscation is also erroneous.
6. The order of Commissioner (II) directing the steamer agents to file supplementary IGM enabling M/s. Simpex Trading Co. (P) Ltd. to file a B/E is also erroneous. The Commissioner could have directed the Import Dept. to consider the same on merit. Such a direction without discussing the merts of the case of supplementation of IGM and without examining whether there has been any fraudulent intention or not, is not correct. The order of Commissioner (II) in this regard appears to be misleading with the Prayer:
In the premises, the appellant prays that this Hon'ble Tribunal may be pleased to deliberate on the correct determination of the following points.
(a) Whether after taking into consideration the facts stated above the said order of the Commissioner is legally correct and proper and
(b) Whether by an order passed under Section 129B of the Act the Tribunal should re-direct the case to the adjudicating authority for limited purpose of deciding supplementation of IGM on merits and liability of the goods to confiscation after hearing M/s. Simpex Trading Co. (P) Ltd., if necessary, or pass any such other order as deemed fit.
2. We have heard Ld. DR Shri A. Chopra, who reiterated the grounds of appeal and prayer made as extracted herein above.
3. Ld. Sr. Counsel Shri S. Venkiteswaram along with Shri N.P. Jagasia appear for M/s. Prakash Marine Agencies Pvt. Ltd. Nobody appeared for the other respondents M/s. Transworld Shipping Services (I) Pvt. Ltd., M/s. Simpex Trading Co. The Ld. Sr. Counsel submits that there are no grounds taken in appeal or prayers made against the finding as regards his clients as arrived at by the Ld. Commissioner and he has no objection to the prayers as sought being granted.
4. We have considered the matter and find that no grounds against the findings arrived at regarding the innocence of M/s. Parekh Marine Agencies Pvt. Ltd. have been given in the grounds of appeals filed by Revenue. Therefore we confirm the order of the Commissioner as regards M/s. Parekh Marine Agencies Pvt. Ltd. As regards the M/s. Transworld Shipping Services (I) Pvt. Ltd. and M/s. Simpex Trading Co. Pvt. Ltd., the orders are set and remand the same back for denovo adjudication in terms of the prayers made. That is only for the limited purpose of decide supplementation of IGM and liability of goods to confiscation, after hearing M/s. Simpex Trading Co. Pvt. Ltd. and M/s. Transworld Shipping Service (I) Pvt. Ltd. Appeals allowed as above.