AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2026 (5) TMI 1530
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....G/C "CRIMSON GAS-3" Voyage No. 1212-04 was scheduled to arrive at Haldia Port on or about 02.01.2013 for loading export cargo of Butadiene on behalf of Haldia Petrochemicals Ltd. The Appellant, acting as Steamer Agent of the said vessel, was appointed by its Principals, M/s Lauritzen Kozan, Singapore, and upon such appointment sought requisite vessel particulars and documents from the Master of the vessel on 27.12.2012. Pursuant thereto, the Master furnished inter alia the Berthing Information of PCS and Pre-Arrival Notification duly signed by him, wherein it was specifically declared that there was "No Hazardous Cargo" onboard the vessel and that the purpose of the vessel's visit was "Loading Butadiene". 2.1. Acting upon such declarations and documents furnished by the Master, the Appellant duly filed the Import General Manifest ("IGM") before the Customs Authorities on 28.12.2012 declaring the vessel as arriving in water ballast, which IGM was duly accepted by the Customs Authorities. Thereafter, on 29.12.2012, the Master sent an email mentioning "Cargo butadiene on board cargo = 526.146 MT in VAC"; however, in the subsequent email dated 31.12.2012, no reference whatsoever was....
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...., by its letter dated 21.6.2013 addressed to the Superintendent of Customs (Preventive), expressly clarified that HPL had originally exported 1534.963 MT of Butadiene on 23.12.2012 to Mitsubishi Corporation onboard vessel "Crimson Gas-3" for discharge at Penang, Malaysia. However, owing to operational reasons, the vessel could not unload 524.598 MT of the said cargo at Penang and consequently returned to Haldia carrying the said retained onboard ("ROB") quantity for loading fresh export cargo. HPL further clarified that on 02.01.2013, the vessel loaded fresh export cargo of 1528.795 MT of Butadiene against Shipping Bill Nos. 3133120 and 3133155 dated 21.12.2012, whereafter the vessel sailed carrying both the ROB cargo and the freshly loaded cargo for partial discharge of 1028.795 MT of Butadiene at Penang, Malaysia and balance discharge of 500 MT of Butadiene at Rayong, Thailand respectively. HPL categorically confirmed that no part of the ROB cargo from the earlier voyage was unloaded at Haldia when the vessel berthed on 02.01.2013 for fresh loading operations. 2.5. Thereafter, a Show Cause Notice dated 28.06.2013 bearing F. No. SIB/Port/19/2013 was issued to the Appellant inte....
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....hat the retained onboard ("ROB") cargo had not been declared by him in the boarding documents and further admitted such omission to be his own mistake. 3.1. The appellant referred the decision of the Tribunal, Kolkata in the case of Century Star Shipping Ltd. v. Commissioner of Customs (Preventive), Kolkata, 2024 (387) E.L.T. 460 (Tri.-Kolkata), wherein this Tribunal has categorically held that non-filing of IGM without fraudulent intent, at best being an inadvertent omission arising out of communication failure, would not attract penalty under Section 112 of the Act. The Tribunal further held that in view of Section 2(31) of the Act, the responsibility for filing full and correct manifest primarily rests upon the Master of the vessel and other agencies cannot step into the shoes of the Master for the purpose of penal consequences. The Tribunal further held that where the lapse arose essentially from failure of communication amongst the various parties concerned and there existed no fraudulent intent, Section 112 of the Customs Act was not invokable. 3.2. The appellant also referred the decision of the Tribunal, Kolkata in the case of Pandaw Cruise Co. Ltd. v. Commissioner of....
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....t immediately sought amendment of the IGM upon receiving confirmation regarding the existence of ROB cargo from its Principals. The email dated 2.1.2013 of the appellant to the Principal, shows the patent surprise and concern as well as frustration towards both the Master and the Principal for not disclosing the ROB cargo on the said vessel. Significantly, as soon as the appellant obtained clarification of the undeclared ROB cargo, it filed the IGM amendment application before the Customs Authorities. The said email of the Principal dated 2.1.2013 shows that even the Principal was not aware of the undeclared ROB Cargo and sought clarification from the appellant in this regard. Evidently, the sole person responsible for the entire mishappening was the Master of the said vessel, who confessed to his mistake, and took the entire blame upon himself without blaming any other person including the steamer agent during his witness examination or at the time of investigation. 3.6. Rob Cargo Never Acquired the Character Of Imported Goods. The appellant submits that the very foundation of the impugned proceedings proceeds on an erroneous assumption that the retained onboard ("ROB") cargo o....
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....urther submitted that the retained onboard ("ROB") cargo never acquired the legal character of imported goods inasmuch as the same remained continuously onboard the vessel, was never unloaded in India and was ultimately discharged abroad. Consequently, the very foundation for invoking Section 111 of the Act fails. Accordingly, the appellant prayed for setting aside the impugned order insofar as the same imposes penalty upon the Appellant under Section 112(a) of the Customs Act, 1962. 4. The Ld. A.R. submits that the appellant has filed an erroneous IGM and mis-declared the goods imported in the vessel to the authorities. Accordingly, he submits that penalty has been rightly imposed on them. 5. Heard both sides and perused the appeal documents. 6. We find that the appellant has been imposed a penalty of Rs.30,00,000/- under Section 112(a) of the Customs Act, 1962 on the allegation that they have not declared the cargo retained onboard ("ROB") in the IGM filed. It was alleged that the Appellant had failed to correctly declare the said quantity in the IGM and allied import documents and had thereby rendered the said goods liable to confiscation under Sections 111(d), 111(f) a....
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.... connived with the Master or vessel owners and aided or abetted any act rendering the goods liable to confiscation. It is also a fact on record that no bill of entry was ever filed for the ROB cargo by any person claiming to be importer thereof. In such circumstances, we observe that the ROB cargo never acquired the legal character of "imported goods" liable to confiscation under Section 111 of the Act. 6.4. Regarding the penalty imposed on the appellant, we find that the essential ingredients for invocation of Section 112(a) of the Customs Act, 1962 are wholly absent in the facts of the present case. The impugned order proceeds in the absence of any finding establishing conscious involvement, intentional omission, aiding, abetting, connivance or deliberate suppression on the part of the Appellant. It is now well settled that penalty under Section 112(a) of the Act in relation to aiding and abetting, cannot be imposed in the absence of culpable conduct and mensrea. Mere procedural lapse, inadvertent omission or communication failure does not ipso facto attract penal consequences under Section 112(a) of the Act. 6.5. In support of the above view, we refer the decision of the T....