Custom, Excise & Service Tax Tribunal
Nippon Express (India) Pvt. Ltd vs Acc, Mumbai on 20 January, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/86253/2015
[Arising out of Order-in-Appeal No: MUM-CUSTOM-AMP-APP-30-15-16, dated 13th April 2015 passed by the Commissioner of Customs (Appeals), Mumbai Zone III.]
For approval and signature:
Honble Shri C J Mathew, Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
No
3.
Whether their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Nippon Express (India) Pvt. Ltd.
Appellant
Vs
Commissioner of Customs (Imports)
ACC, Mumbai
Respondent
Appearance:
Shri Jayadev S, Sr. Manager for the appellant Shri D K Sinha, Asstt. Commissioner (AR) for the respondent CORAM:
Honble Shri C J Mathew, Member (Technical) Date of hearing: 20/01/2016 Date of decision: 20/01/2016 ORDER NO: ____________________________ Aggrieved by Order-in-Appeal No. MUM-CUSTOM-AMP-APP-30-15-16, dated 13th April, 2015 of Commissioner of Customs (Appeals), Mumbai which concurs with the original authority, the Assistant Commissioner of Customs, Air Cargo Complex, Mumbai, M/s Nippon Express (India) Pvt. Ltd., is in appeal before the Tribunal. The original authority has imposed penalty of Rs 4,90,000/- on the appellant for late filing of Consol General Manifests for the period from April, 2007 to January, 2009. It would appear that there was delay in filing of manifests on 490 occasions during this period.
2. Appellant is a registered agent for filing of Consolidated General Manifests at Air Cargo Complex, Mumbai for air shipments which are intended to be landed against Master Airway Bills covering individual House Airway Bills issued to individual consignors. Only such cargos as are entered in these manifests are allowed to be cleared and the manifests are required to be filed before arrival of aircraft at Mumbai.
3. The appellant contends that delay in filing is caused by reasons beyond their control such as problems with ICEGATE, erratic power supply, lack of sufficient time when short-haul flights carry the cargo and intervening holidays. Appellant avers that 179 submissions had been filed in advance and that delay is attributable to them only in 96 cases.
4. Representative of the appellant also submitted that the law does not envisage such cumulative penalty with the statute requiring imposition of penalty at the time of occurrence of each delay after ascertaining reasons most of which, in their case, were tenable. It was also informed that manifests were being filed and there has never been a case of unmanifested goods being landed. Learned Authorised Representative reiterated the statutory provisions relied upon in the order of the original authority.
5. One of the principal aims of the Customs Act, 1962 is the collection of appropriate duty on imported goods; bringing in goods into the country contrary to prohibitions or without payment of duty is smuggling; and prevention of smuggling is another principal objective of the statute. To enable a proper of accountal of licit import, control over conveyances entering the country and goods landed therefrom is necessary. Manifests serve the purpose of such control. Following the rescinding, physical control of goods and conveyances that prevailed under Sea Customs Act, 1878 and the Aircraft Act, 1934 and replacement by custodianship of cargo under the Customs Act, 1962, Customs authority depend on the prompt filing of manifests for accountal and control over import cargo till these are cleared for home consumption. In the event of inability to evince justifiable cause for delay, the person-in-charge of conveyance or agent is liable to be imposed with penalty of upto Rs 50,000/-. The appellant is agent of person-in-charge of aircraft for the cargo entrusted by their principals or associates to the airline.
6. Chapter VI of the Act encompasses the mode of control. Goods can be unloaded only if detailed in the manifest. In the absence of manifest, landing is hampered, assessment cannot be taken up and there is possibility of short-landing as well excess landing. Penal provision is intended as a deterrent to such delay. Section 30 of Customs Act, 1962 requires that the proper officer ascertains the cause for delay and it would appear that delay, by itself, does not warrant imposition of penalty; deliberate intent or casual approach to this responsibility needs to be acted upon.
7. The notice leading to imposition of penalty covered alleged contravention over a period of 22 months and were issued after a lapse of five months following the latest incident covered in the notice. From the response of the appellant to the proceedings before the original authority, all cannot be attributed to deliberate intent or casual approach. The justification offered by the appellant was not considered even though Section 30 of the Customs Act 1962, which empowers the imposition of penalty, enjoins the proper officer to do so. While Section 122A of Customs Act, 1962 prescribes hearing before imposing penalty, the provisions of Section 124 i.e., issue of notice is not a requirement for action under Section 30. From a plain reading of that provision, it would appear that this provision is intended as a summary disposal after hearing. Such summary disposal would have enabled the proper authority to adjudge justification for delay on each occasion instead of peremptory dismissal of justification offered for the 490 occasions at one go. To that extent, it would appear that there has been miscarriage of justice.
8. Considering the above circumstances, the appeal is allowed and penalty is set aside with consequential relief.
(Pronounced in Court) (C J Mathew) Member (Technical) */as 5