TaxTMI 
TaxTMI 
2000 (9) TMI 1048
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....ncerned with such filing. 2.  The J.N. Port commenced operations from May 1989. It is unique port inasmuch as it is fully mechanised handling bulk cargo like foodgrains, fertilizers and also containerised cargo. It does not handle break-bulk cargo. ISO Containers are boxes of steel of pre-determined dimensions. The length is standardised at 20 feet and 40 feet. The containers are carried on board cellular vessels. Each cell is designed to contain one 20 feet container. The schematic drawing of a vessel showing the placement of cells is called an outline plan. Essentially the plan is a series of small square each indicating the container position. The outline plan also shows the number of tiers where the containers in a cell are stacked one above the other. A specific numbering system is adopted to show a particular container placed below deck, above deck as also those stacked at Port and Starboard. The outline plan is divided into bays which are cells placed in one line from the front of the vessel to the back of the vessel. Thus to identify the container for the purpose of unloading, one has to know the bay number, the cell number and tier number. The cellular vessels gene....
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....ort cargo is also similarly stored awaiting the arrival of the respective vessel. The J.N. Port acts as a stevedore as also custodian of all the import or export cargo. The loading and unloading is under the general supervision of Customs. The Port Trust keep meticulous account of the container numbers imported or kept for export. At the end of every shift, such details are entered in the Port Trust computer. The loading and unloading is also separately monitored by the concerned Shipping Lines who appoint independent surveyor for compiling parallel data. 5.  Each container when cleared for export is sealed by the line normally with bottle seal which has to be broken to open the container. The customs, after examination, affixes their seal on both the import and export containers. Thus the imported containers would invariably have bottle seals as also a seal put by the Customs at the exporting country. Thus for all the containers available in the container yard, the seals would be visible and intact and where the seal is found to be broken there is immediate examination of the containers by Port Trust and Customs. 6.  The import containers would remain in the contai....
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....n of each consignment giving the number of containers, name of the importer as also bill of lading number. These details are verified and referred back to when the individual importers file bills of entry for clearance of the consignments. We now come to the facts leading to the present dispute. 9.  A vessel by name M V CMB Medal arrived at J.N. Port. The arrival report was filed and entry inward sought on 24-8-1994. The IGM was filed on 25-8-1994. The advance list of containers showing the container number and weights thereof were earlier filed by Line with the J.N. Port on 22-8-1994. This advance list would enable the Port Trust to draw yard plan for storage of import and export containers. The advance list contained details of 505 containers. The list included 4 containers loaded at Antwerp each weighing at 23.2 Tons. The ship discharged imported containers which included 4 containers loaded at Antwerp bearing the following numbers :- 1. CMBU - 2167391 2. CMBU - 2197729 3. CMBU - 2286744 4. ....
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.... Import Dept.) (vii) Mr. P.P. Mohan Kutty - Asstt. Manager (viii) M/s. CMB Transport Agency. (ix) Mr. Navneet Cheddha. 13. After hearing the concerned persons, the Collector (Prev.) passed the impugned order confiscating absolutely the cargo and the containers, confiscating the vessel but permitting redemption thereof on payment of fine and imposing penalties on all the Noticees except on Shri Navnit Chedda. Out of the 8 noticees, 7 persons and M/s. CMB Transport Agencies have filed appeals challenging the penalties. Owners of the ship M/s. Conti-Schepers Schiiffahrts-gessellschaft mb H & Co., have filed an appeal challenging the confiscation of the vessel. The case of the appellants were argued by Smt. F.S. Krishnan. Revenue was represented from time to time by Shri Deepak Kumar and Shri B.K. Choubey. 14. We have carefully considered the submissions made by the appellants and have seen the documents tendered. We will first deal with the liability to confiscation of the 4 containers with their cargo under Section 111(f), (g) and (h) of the Customs Act. For ease of reference the same are reproduced below : "Sec. 111 ....
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....l examine later, the confiscation under this provision was also not warranted. 16. As regards Section 111(f), we will have to review the history of the containers from the time of their loading. The vessel MBA Medal left Antwerp on 27/28 July, 1994 and reached J.N. Port on 24-8-1994. The Voyage covered the Ports of Hamburg, Genoa, Port Syed, Dubai and Karachi. The loading of these containers was confirmed by the Loading Agent Aseco vide their telex dated 28-7-1994 through their London Office. On 9-8-1994 Aseco's London Office queried whether the containers were shipped because the shipper M/s. Liberty Commerce had not sent shipping instructions. The London Office sent message to the shippers on 10-8-1994 to send specific instructions. The reply was received requesting issue of Bills of Lading showing consignee to order. On 11-8-1994, loading port agents pointed out to their London Office as well as to M/s. CMB, Bombay Office that for these 4 containers bill of lading had not been received. On 11-8-1994, London Office informed that in the absence of specific instructions, a dummy bill has been prepared. The name of the shipper was shown but not of the consignee. The load....
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....cation of the unloaded containers. This is because the re-shipment/transhipment containers are stored separately from the containers to be cleared at J.N. Port. The Customs require an advance list to be filed because there is a Notification which exempts payment of duty on containers provided these are exported within 6 months. The containers cell of the Customs House makes appropriate entries on receipt of the advance list. Therefore, although the advance list is not acknowledged as a customs document, it has assumed the nature of being one. Therefore, the learned Commissioner's summary dismissal of the claim that the containers were included in such advance list on the observation that such list was not legal document was not proper. The inclusion in the advance list indicates that their existence was not kept as secret from either of the authorities. 20. The second aspect in favour of the appellants is the contents of the containers which were subjected to thorough search by the customs. Zinc residue was freely importable at the material time and cannot be called as contraband. The consignee is not a ficititious person. Mr. Navneet Cheddha did appear before the Custo....
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....-cause Notice alleges and the Commissioner holds that the public Notice was prompted by several attempts to clandestinely clear some containers. The language of the public Notice does not give any such indication. During the hearing, a pointed query was made to both the sides to disclose any such information. The Departmental Representative was unable to answer and the appellants' counsel made specific statement that no such case took place. 24. The learned Counsel for the appellants made a grievance that in the face of facility in sub-section (3) of the Section 30, patent denial of any supplementary manifest being filed amounted to denial of the benefit available thereunder. We are not required to examine the vires of the Notice. Suffice it to say that the public notice cannot be the plank for the Commissioner's finding as to conspiracy. 25. We have also carefully perused the statements of the concerned persons on record. 26. We find no admission or even a suggestion that the non-mention of the containers in the IGM was a pre-meditated act. On the other hand, all the deponents have claimed it to be an error. The Commissioner has made much of these d....
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....reated separately from their contents. Where the contents may or may not be dutiable, the containers enjoy clearance duty-free under a particular Notification in these circumstances, we direct that the containers to be freed of their cargo and be released to the appellants, M/s. CMB Transport. 30. The Commissioner has confiscated the vessel CMB Medal under the provisions of Section 115(2) of the Act and allowed its redemption on payment of fine. The relevant provision reads as under : Sec. 115 (2) "Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal [.....] :    Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sou....
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....t in the current time his powers have eroded and responsibilities as to the filing of documents have been delegated to other people. This is because of the complexities in the law of the countries the ship visits, as well as the increased speed of transportation and the complexities in documentation. Thus the responsibilities of filing the shipping documents although legally resting upon him, are now borne by Officers of the Ship's Agents. The same is the situation of the Chief Officer. The provisions of 112(a) and 114 require conscious knowledge of the fact that their actions or lack of actions would render any goods liable to confiscation. The Master and Chief Officer in the present proceedings were not shown to have had such knowledge. Although the Commissioner in his order has cited their statements in a different manner, the depositions do not admit of any knowledge. The Orders of penalties imposed upn them therefore do not sustain. A number of officers of the shipping agents M/s. CMB Transport have also been similarly charged. We have seen their statements. We have also seen the chain of events. The chain does not show that these Officers were personally responsible for r....