Customs, Excise and Gold Tribunal - Mumbai
James Mackintosh And Co. Pvt. Ltd. And P ... vs Commissioner Of Customs on 9 October, 2003
Equivalent citations: 2004(166)ELT88(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. These appeals are by agents of masters of vessels against two orders of the Commissioner of Customs, Mumbai ordering confiscation under Clause (f) and (g) of Section 111 of the Act of cargo that was unloaded from the ships.
2. The facts briefly are as follows. James Mackintosh & Co. (appeal E/173/97) as an agent of the master of the ship Trade Fast filed a manifest on 2.9.1996 for the ship on its arrival in Mumbai. Subsequently, on 30.9.1996 it filed an application for amendment of the manifest by including in it 6 tonnes of chemical which were on board the ship. P&O (Indian Agencies) P. Ltd. filed on 8.10.1996 an application for including in the manifest filed on 4.10.1996 for the ship Ultra flex Orient two containers of di methyl formamide. Both parties having waived issue of written notice, were heard by the Commissioner who passed orders holding the goods liable to confiscation under Clause (f) and (g) of the Act but permitting them to be redeemed on payment of fine.
3. The reason advanced by the Commissioner in support of his order of confiscation is as follows. The goods have been imported into India and unloaded from the ship contrary to provision of Section 13 as they were not included in the import general manifest. Permission for unloading them as required in Section 34 had not been taken.
4. The provision of the Act that I am concerned with are on the following. Section 32 provides. "No imported goods required to be mentioned under the regulation in an import manifest or import report shall except with the permission of the proper officer, be unloaded at any customs station unless they are specified in such manifest or report for being unloaded in that custom station." Section 34 provides "Imposed goods shall not be unloaded from, and export goods shall not be loaded on, any conveyance except under the supervision of the proper officer" The proviso empowers the Board to grant general permission and the proper officer of Customs in a particular case to give special permission for any goods or class of goods to be unloaded without the supervision of the proper officer. Section 30 requires a person in charge of a vessel or an aircraft carrying imported goods to deliver to the proper officer import manifest (and import report in the case of weight) within 24 hours after arrival in the customs station of a vessel 12 hours after the arrival in the case of aircraft or vehicle in the prescribed form. Sub-section (3) of this section provides that if the proper officer is satisfied that import manifest or imported goods is incorrect or except and there was no fraudulent intention he may be permitted to amend or supplement it. Section 31 provides in Sub-section (1) manifest of the vessel shall not permit the unloading of the imported goods in only an order has been given by the proper officer acting entry inwards the ship. Sub-section (2) provides that no such order shall be given unless an import manifest has been delivered and the proper officer is satisfied and sufficient case for not delivered. Clause (f) of Section 111 applies to any dutiable and prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned. Clause (g) of Section 111 of the Act applies to any dutiable and prohibited goods which are unloaded from a conveyance in contravention of the provisions of Section 32, other than those inadvertently unloaded but included in the record kept under Sub-section (2) to Section 45.
5. The following position that emerges under the provision of law insofar as vessel carrying cargo are concerned. The manifest has to be filed not later than 24 hours after the arrival of the ship. The goods on board the ship may be permitted to be unloaded after the ship is entered inwards. Such entry inwards shall not be permitted unless the manifest has been filed or its requirement waived. In actual practice, the manifest is generally tendered prior to arrival of the ship by its agent in order to facilitate filing of bills of entry by the importers to avoid delay and consequent demurrage. The preventive officer of customs boards the ship when it comes into port, collects the manifest, seals the alcohol and other bonded goods on board and permits entry inwards.
6. The import manifest filed is clearly nothing more than the sum of the export-manifests filed by the ship in its voyage. Thus the import manifest filed in Mumbai of a ship which sailed from Dubai and called at Singapore would be the sum total of the export manifest filed in these ports less whatever has been discharged en route. Such export manifests are based upon the bill of lading that are issued that are loaded on board the ship. It often happens that in the hurry shipment, before saying a number of bills are left out while compiling the export manifest. The error is generally discovered by the importers who find that the cargo which they are a aware has been sent to them by their suppliers does not figure on the manifest of the ship. They then approach the agent of the ship who after verifying the bills of lading and other facts files an application for additional entry in the manifest. From this narration of the event, it will be clear that the general practice the process of filing an application have additional entry in the manifest and its disposal in the custom house take a few days. Therefore in actual practice cargo for which application is made for additional entry has already been unloaded. Considered in isolation Clause (g) of 111 would apply to such goods for which an application is pending. They have, strictly speaking, been unloaded from the ship without being mentioned in the manifest and there is thus contravention of Section 30. The same position would also apply to Clause (f) as the goods were required to be mentioned and were not so mentioned. If however, this alone is the consideration Sub-section (3) of Section 30, would be rendered redundant. If has been held that an application made under that section for amendment of an existing entry or inclusion of a fresh entry in the manifest would have accepted date back to the filing of the manifest by the judgment of the Kolkata High Court in Associated Forest Products (P) Ltd. v. CCE 1992 (59) ELT 264. It would be as if that manifest were filed containing the amendment or added entry. In case where such application is accepted, it could not then be said that goods were not manifested. Hence the emphasis of the words in Sub-section (3) of Section 30 that amendment or supplement of a manifest is to be permitted if there is no fraudulent intention. This is to prevent cases in which cargo attempted to smuggle is sought to be included on the discovery of its existence by seeking an amendment to the manifest. Where therefore an application has been made and is pending for inclusion of an additional entry in the manifest, it would be premature the goods by application of Clause (f) and (g) of Section 111. The position would be different if no application had been made, or an application having been made were rejected. In the case before me, the applications were pending when the Commissioner passed his order. It is not the department's case that the applications had been rejected. There is therefore insufficient material to justify confiscation.
7. The appeals are allowed and the impugned order set aside.