TaxTMI 
TaxTMI 
2013 (8) TMI 652
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.... in as much as the said items were part of the annexure to MOA which was submitted to the customs. As such, non-declaration of these items was not with a view to evade duty or to withhold some information from the customs in as much as such information as regards presence of motor bike and caterpiller was already on record. Non-declaration was bona fide procedural mistake. 3. Opposing the above argument, learned SDR submits that it is mandatory for the captain of the vessel to declare the correct item in IGM and the fact that the present items were not declared is lapse on its part which would invite penal action. 4. No doubt that there is a lapse on the part of the appellant for not declaring the goods in question in IGM. It is also fact that declaration in IGM is required to be made correctly by the captain. However, it is to be seen as to whether each and every lapse is required to be met with penal action. Admittedly, two items in question motor bike and caterpillars were already included in MOA and were part of the records. As such, there can be no conscious effort on the part of the captain to hide the above fact from the customs with any ulterior motive. 5. It is fu....
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....e of procedural nature without any intention to evade duty. We are of the view that such bona fide and inadvertent mistake should not be met with imposition of penalty, which has inherent built of mala fide. 10. We, accordingly, set aside the penalty of Rs. 50,000/- and allow the appeal with consequential relief. (Dictated & Pronounced in Court) Sd/- (Archana Wadhwa) Member (Judicial) 11. [Per : B.S.V. Murthy, Member (T)]. - Since I am not able to agree with the order proposed by learned Member (Judicial) setting aside the penalty of Rs. 50,000/-, I record a separate order as below. 12. The master of the vessel is required to file IGM in terms of provisions of Section 30 of the Customs Act, 1962 and normally this is filed by the shipping agent on his behalf and primarily the responsibility rests with the master. Before original adjudicating authority, the master of vessel had submitted that he had filed necessary IGM and he had declared correct description. He had also stated that all the movable items had been specifically declared in the prescribed formats. Learned advocate on behalf of the master of vessel has reiterated the same submissions before us.....
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....cess it is ensured that all the goods are properly accounted for. Since IGM is such an important document and it is not that the master of the vessel and the shipping agent are not aware of the importance since this is to be done every time a ship enters any port. Just because these goods were found in the MOA, it cannot be laid that they need not have been declared or requirement of their mention can be taken lightly. The seriousness attached to IGM by the country can be understood from the fact that Section 30 of Customs Act, 1962 prescribes a penalty of Rs. 50,000/- even for delayed submission of the IGM. Further Section 111(f) provides for confiscation of dutiable goods if they are not mentioned in import manifest. No mens rea is required and omission is sufficient. Similarly, Section 112 (a) also does not require any intent or mala fide in the omission for levy of penalty for such omission. This being the legal position, just because goods were listed or MOA or the mistake is bona fide, does not help the appellant. Needless to say discretion can be exercised as regards quantum of penalty. I also note that total value of goods not declared has been worked out with the help of C....
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....lared in the IGM by the Master of the vessel as held by learned Member (Judicial) or whether they were required to be declared as held by Member (Technical). (ii) Whether dozer caterpillars were part of the vessel as held by learned Member (Judicial) or were not part of the vessel as held by Member (Technical). (iii) Whether the motor bicycle has to be considered as part and parcel of the vessel as held by learned Member (Judicial) or it has to be treated as not a part of the vessel as held by Member (Technical). (iv) Whether the fact that the value of the motor bicycle is only Rs. 5,050/- and therefore is significant and hence it need not be declared in IGM as held by learned Member (Judicial) or whether it is required to be declared in the IGM as held by Member (Technical). Sd/- Sd/- (Archana Wadhwa) (B.S.V. Murthy) Member (Judicial) Member (Technical) (Pronounced in Court on 3-9-2010) 18. [Per : M.V. Ravindran, Member (T)]. - This difference of opinion has been listed before me on the direction of the Hon'ble President for resolving following issues :- (i) Whether the fact that two items in question namely motor bike and caterpillars were incl....
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....ant having not filed the mandatory declaration has violated of the Customs Act, 1962, due to which the said motor-cycle, dozers and caterpillars are liable for confiscation due to violation of Section 111(f) of the Customs Act, 1962. It is his submission that it is for the master of vessel making declaration to the Customs Authority, hence he was penalized. Learned SDR relied upon the Tribunal decision in the case of Rico Gems Corporation v. Commissioner of Customs, Mumbai-I 2007 (211) E.L.T. 315 (Tri.-Mumbai), and Shiv Marine Ind. Pvt. Ltd. v. Commissioner of Customs, Jamnagar - 2007 (219) E.L.T. 871 (Tri.-Ahmd.). 21. I have considered the submission of both the sides. 22. It is seen from the records that the appellant master of vessel have filed Cargo declaration in form III as mandated in provisions of Customs Act, 1962. The said Cargo declaration indicated "full ship with all movable and unmovable items on board the vessel with the following description for braking" (emphasis supplied). The said Cargo declaration and General declaration was as per the prescribed form in the Customs Act, 1962. Ship's Store declaration as mandated in the Customs Act, 1962 was also filed and....
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.... (Judicial) ============= Document 1 FORM-III CARGO DECLARATION' (See regulations 3 and 4) Name of shippin line, agent, etc. m/s. Royal Andover Inc.. : m/v. Apala Falcon 1. Name of Ship 2. Port where report is : Alang ANNEXURE-V 3. Nationally of ship 4. Name of the Master 5. Port of loading : Panama : Capt. Cosmai Ivica : not applicable 6. Line No. 7. Bill of lading No. 8. Number and kinds of packages 9. Marks and numbers 10. Gross weight 11. Description of goods As per attached e. g. cases, cartons, Bags, Bales, Pieces Cargo List 12. Name of Condignea / importer, if different 13. Date of pre- sentation of bill of entry 14. Name of Customs House Agent). No. 15. Ratation. Year Cash/deposit No. of W. R. No. packages on which duty collected or warehoused To be filled by Customs House Date and signature by Master, authorised agent or officer (G. I. Anjaria) Inspector of Customs Bhavnagar. (to be filled by Port Trust) No. of packages discharged QABA HALCON PANAMA ....