TaxTMI 
TaxTMI 
2016 (6) TMI 626
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.... (Appeals), Custom House, Chennai on 08.03.2012, rejecting the appeal preferred against the Order-in Original passed by the Joint Commissioner of Customs, Manifest Clearance Department, Custom House, Chennai dated 29.10.2010. 3. It appears M/s Komal Enterprises, Fathe Nagar, Hyderabad imported 110 containers of MS Scrap/plates from UAE supplied by M/s Habih Ullah, Dubai. Out of the above 100 containers, 40 containers are stated to contain 797.37 MTS of MS Steel scrap valued at Rs. 1,07,85,965/- and 302.29 MTS of MS Plates valued at Rs. 51,11,318/- involving a duty of Rs. 26,31,318/-, shipped through the vessel "MAERSK UTAH" which arrived on 03.09.2009. M/s.Caravel Shipping Services, Chennai filed an 'Import General Manifest (IGM)' No.15738/09 in terms of and in accordance with Section 30 of the Act for the aforementioned vessel. On investigation, it turned out that the entire manifested quantity of 797.37 MTS of MS Steel Scrap and 302.29 MTS of MS Plates, has not landed as all the 40 containers were found empty. When weighed the 40 containers, their weight was 100 MTS, thus reflecting their ordinary tare weight. Thus, penalty proceedings for short landing of the goods ha....
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....be monitored by the Master of the vessel by comparing the total loaded cargo weight + the tare weight of the vessel with the submergibility of the vessel in the sea water, applicable for each quantum of weight of the cargo loaded into the vessel, within the overall permissibility ratio of overall sailing weight with that of the submergibility level. The appellate authority has found no merit in the appeal and rejected the appeal. 6. Then a revision was preferred before the Government of India under Section 129 DD of the Act and the Government of India by its order dated 27.07.2012 rejected the revision. During the course of the said order, it was noted that in view of the provisions contained in Section 30 of the Act and the Import Manifest (Vessel) Regulations, 1971, the Import Manifest is liable to be considered as a basic legal document and hence declarations made therein are bound to be taken into consideration for purpose of further action under the Act. In paragraph No.8.2 of the Order-in-Revision, it was noted that the steamer agent is an agent of the carrier, appointed under Section 148 of the Act and hence under Sub-section (2) thereof the liability of the agent appoint....
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.... accounting for the goods, reads as under: "116. Penalty for not accounting for goods. If any goods loaded in a conveyance for importation into India, or any goods transhipped under the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity unloaded is short of the quantity to be unloaded at that destination, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the [Assistant Commissioner of Customs or Deputy Commissioner of Customs], the person-in-charge of the conveyance shall be liable, (a) in the case of goods loaded in a conveyance for importation into India or goods transhipped under the provisions of this Act, to a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been imported; (b) in the case of coastal goods, to a penalty not exceeding twice the amount of export duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been exported." 13. From th....
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....r the time being in force, and to penalties and confiscations which may be incurred in respect of that matter." 17. Therefore, while deciphering the true import and impact of Section 116 of the Act, it is not merely enough to take in to account and consideration the meaning ascribed to the expression "person-in-charge" under Section 2 (31) of the Act, but Section 148 has also got to be read conjointly and it s contents are also to be noticed. Sub-section (1) of Section 148 of the Act sets out that where the Act requires anything to be done by the person-in-charge of a conveyance, the same may be done on his behalf by his agent. This provision is a mere reiteration of the 1st principle relating to Appointment and Authority of the agent contained in Section 182 of the Indian Contract Act, 1872, which clearly brings out that an "agent" is a person employed to do any act for another or to represent in dealings with 3rd persons. Sub-section 2 of Section 148 of the Act has certain bearing on the issue at hand, hence it is appropriate to notice the said provision. 18. A careful scrutiny of Sub-Section (2) of Section 148 of the Act makes it abundantly clear that an agent appointed by....
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....sy at hand. Thus, whoever lodges the import manifest with the proper officer of the Customs, acts as such, as an agent of the Master of the vessel. 20. From a conjoint reading of Sections 2 (31), 30, 31, 116 and 148 of the Act, it becomes clear that the person-in-charge of a conveyance together with the person acting on his behalf as his agent or for the matter any other person acting on his behalf by lodging import manifest under Section 30 of the Act, equally become liable for payment of the penalty. 21. In fact, the Supreme Court in "British Airways PIC v. Union of India" (2002 (2) SCC 95 = AIR 2002 SC 391) has considered the combined effect of Sections 2(31), 116 and 148 of the Act and held as under: "The scheme of the Act provides that the cargo must be unloaded at the place of intended destination and it should not be short of the quantity. Where it is found that the cargo has not been unloaded at the requisite destination or the deficiencies are not accounted for to the satisfaction of the authorities under the Act, the person-in-charge of the conveyance shall be liable in terms of Section 116 of the Act. Besides the person-in-charge of the conveyance, the lia....