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Shri Muk Tin Fui And Anr. vs Collector Of Customs (P) on 22 January, 1986 cites

Everett Orient Line Incorporated vs Jasjit Singh And Ors. on 11 September, 1958

9. As regards the appellant's plea that the ship Ngan Chau was not liable to confiscation under Section 115 as there was no mens rea on the part of the owners, it is seen that the master of the ship was very much involved in this case of smuggling. The ship has been confiscated under Section 115(2) of the Customs Act. No mens rea is required for ordering such confiscation vide AIR 1959 Calcutta 237 in the case of Everret Orient Lines v. Jasjit Singh. The decision of the Bombay High Court in the case of Garware Shipping.Co. 1984(15) ELT 375 has been superseded by the decision of the Bombay High Court in the case of Mughul Lines and Ors. as pointed out by us during the course of the arguments. Therefore, this decision is also of no avail to the appellants. The market value of the goods is more than the amount of fine levied in lieu of confiscation of the vessel and therefore there is no illegality in the Collector's order for the levy of the fine. This part of the order is correct. As regards the Collector's order of levying a penalty of Rs. 50,000/- on M/s. Hongkong, Island Shipping Co. Ltd. who are the owners of the vessel, it has been pleaded that the owners are not liable to any penalty. It has been urged that if there was any offence, it was committed by the master and the chief officer and that the owners were innocent. Even the Trial Magistrate had found only the Chief officer guilty. The department's appeal to the High Court had been dismissed. It has been urged that the ratio of the High Court's decision should be followed in the quasi-judicial proceedings before the departmental authorities. Besides it has also been urged that in case of a sister ship belonging to the same Company, the Board had set aside the order of penalty on the owners and reliance had been placed on the Board's order in this behalf which came up before the Tribunal for consideration in our Order No. 1198-99/85 dated 7-11-1985. The appellants have therefore urged that no penalty should be levied on the owners and that the Collector's order of penalty should be set aside. Considering these submissions it is seen that a penalty under Section 112 can be levied if a person is either concerned with improper importation of the goods or who acquires possession or deals in these goods etc. knowing that they are liable to confiscation. Though the Collector has not specified the sub-section under which penalty has been levied the facts of the case show that it has been levied under Section 112(a) of the Customs Act. The question would therefore arise as to whether the owners did anything which would render the 166 packages liable to confiscation or omitted the doing of such an act. There is no evidence to suggest that the 166 packages were shipped with the knowledge of M/s. Hongkong Island Shipping Co. Ltd. The improper declaration of the packages also cannot be ascribed to that Company. It was the duty of M/s. New India Maritime Agency P. Ltd. or the Master of the vessel to file a correct 1GM of the vessel. If therefore there was any incorrect declaration, the responsibility could not be ascribed to M/s. Hongkong Island Shipping Co. Ltd. Besides, it is seen in the orders of the Collector and the Board that there was no evidence to show that 166 packages in question were shipped with the connivance of the owners. The Board in their Order dated 22-2-1980 have observed that considering the role of the Master and the Chief Officer it is quite clear that the unauthorized transactions could be only under the instructions from the owners of the ship. The Board therefore confirmed the Collector's order in coming to the aforesaid conclusion. The Board discussed the evidence on the basis of which the Collector found the owners concerned in the unauthorised importation of 166 packages. However, we find that there is no evidence regarding the direct complicity of the owners in the unauthorised importation of the 166 packages and therefore it is not legitimate to presume that the shipment of these 166 packages should have been under the owner's instructions. The shipping order from the owners does not appear to be genuine and there is no evidence that this was signed by any responsible officer in M/s. Hongkong Island Shipping Co. Ltd. At best, it appears to be a crude attempt of the Captain and the Chief Officer to provide some legal covering to 166 packages and this type of document cannot implicate the owners of the ship in this act of smuggling. Besides, there is a great deal of force in the appellant's contention that in the case of another ship of the same lines, the Board had set aside the order of penalty imposed by the Collector on the owners, vide our Order No. 1198-99/85 dated 7-10-1985 considering these aspects we find that the levy of penalty of Rs. 50,000/- on M/s Hongkong Island Shipping Co. Ltd. under Section 112 of the Customs Act is not justified and we set aside the same.
Calcutta High Court Cites 16 - Cited by 11 - Full Document
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