2015 (5) TMI 1015 - AT - Customs

Imposition of penalty - Under Section 116 & 117 of the Customs Act, 1962 - Short landing of goods and non amendment to IGM - Held that - there was no need to initiate action when we refer to Apprising Manual and also the scheme of action to be taken on the basis of OTR. Since the duty has been paid on the entire quantity, there is no need to initiate action against the steamer agent for short-landing at all. Therefore, for failure to amendment to IGM, penalty under Section 117 have been imposed. In view of the absence of any finding to contradictory claim of the appellant that loss was happened because of natural calamity and there is no mala fide intention on the part of the steamer agent, penalty not to be imposed. Therefore, even though there was a short-landing as per OTR, once duty has been paid on the entire quantity, even assuming that goods have entered into country, it can be said that they have entered after discharging the liability of import duty and penalty under Section 116 ibid not to be imposed. - Decided in favour of appellant with consequential relief

Summary

Issues:
Short-landing of timber logs, imposition of penalty under Section 116 of the Customs Act, 1962, justification for penalty, amendment to Import General Manifest (IGM), applicability of Apprising Manual guidelines.

Analysis:
The case involved the short-landing of 159 pieces of timber logs by a steamer agent, leading to the imposition of a penalty under Section 116 of the Customs Act, 1962. The original authority found the appellant failed to account for the short-landed logs and imposed a penalty of &8377; 12,60,724, which was upheld by the Commissioner (Appeals) and challenged before the Tribunal. The appellant argued that the short-landing was due to a natural calamity, and the duty had been paid on the entire quantity, thus no penalty should be levied. The Revenue contended that the steamer agent should have sought an amendment to the IGM to avoid penalty.

The Tribunal considered both arguments and noted that although the short-landing was due to an accident, the appellant did not request an amendment to the IGM. The authorities did not dispute the accident but were unsatisfied due to the lack of an IGM amendment. The Apprising Manual guidelines were referenced, emphasizing that duty is demanded only if goods irregularly enter the country, and the adjudicating authority has discretion in penalty imposition when duty has been paid and refund is time-barred.

The Tribunal found that the duty had been paid on the entire quantity, indicating the steamer agent presumed compliance. The purpose of the OTR and IGM is to ensure duty payment on all items, and action for short-landing is warranted when duty is unpaid on the short-landed quantity. In this case, the Tribunal opined that penalty under Section 117 for failure to amend the IGM could have been appropriate, but penalty under Section 116 was unwarranted.

Considering the absence of mala fide intent and the possibility of an IGM amendment, the Tribunal concluded that the penalty was unjustified. The impugned order was set aside, and the appeal was allowed with consequential relief. The Tribunal highlighted that the penalty under Section 116 was not justified in this scenario, and the stay application was disposed of accordingly.