2013 (8) TMI 99 - CGOVT - Customs

Penalty u/s 116 person-in-charge of conveyance - All the containers had been received empty steamer agents could not provide a satisfactory explanation for short-landing and was accountable for the declared quantity of the cargo especially when the seals provided by him were used for sealing the containers - assesse contended that u/s 116 penalty can be imposed only on person-in-charge of the conveyance and not on steamer agent, that seals of containers were found intact and therefore no penalty can be imposed u/s116 - Held that - As such steamer agent was liable to penal action u/s116 - Section 148 makes it clear that such agent shall be liable for fulfillment in respect of matter in question of all obligations imposed on such person in-charge and to penalties and confiscation which may be incurred in respect of that matter. Knowledge of empty containers Held that - It was not at all possible that master of the vessel did not know the fact of empty container loaded in the vessel. Mens- rea - Assesse contended that there was no mens rea on the part of person-in-charge Held that - Section 116 makes it clear that penalty was imposed for not unloading the goods which were loaded in vessel for importation into India - There was no requirement of proving mens rea on the part of person-in-charge of conveyance relying upon M/s. ITC Ltd. v. CCE Delhi 2004 (9) TMI 103 - SUPREME COURT OF INDIA order upheld Decided against assesse.

Summary

Issues Involved:
1. Whether the penalty under Section 116 of the Customs Act, 1962 can be imposed on the steamer agent.
2. Whether the steamer agent is liable for the short-landing or non-landing of goods.
3. Whether the imposition of penalty requires proof of mens rea.
4. Whether the guidelines laid down in previous judgments apply to this case.

Issue-wise Detailed Analysis:

1. Imposition of Penalty on Steamer Agent:
The applicant, a steamer agent, contended that under Section 116, penalty can only be imposed on the person-in-charge of the conveyance, not on the steamer agent. However, the government clarified that as per Section 148 of the Customs Act, 1962, a steamer agent is liable for the fulfillment of all obligations imposed on the person-in-charge of the conveyance. Therefore, the steamer agent is liable for penal action under Section 116 in this case.

2. Liability for Short-landing or Non-landing of Goods:
The investigation revealed that 40 containers, which were supposed to contain MS steel scrap and MS plates, were found empty. The applicant argued that the seals were intact, indicating no tampering. The Commissioner (Appeals) held that it is improbable that the master of the vessel was unaware of the empty containers, given the significant weight discrepancy. The government upheld this view, noting that the steamer agent, as an agent of the carrier, is responsible for the short-landing or non-landing of goods.

3. Requirement of Mens Rea for Imposition of Penalty:
The applicant argued that there was no mens rea (criminal intent) on their part, and thus, no penalty should be imposed. The government referred to Section 116 of the Customs Act, which does not require proof of mens rea for the imposition of a penalty. The penalty is imposed for the non-landing or short-landing of goods, irrespective of intent. Therefore, the penalty was rightly imposed on the applicants.

4. Applicability of Previous Judgments:
The applicant cited previous judgments, including Shaw Wallace & Co. Ltd. v. Asstt. Collector of Customs, which stated that if the seals are intact, the vessel owner should not be held responsible for short-landing. The Commissioner (Appeals) distinguished these cases, noting that in the present case, the containers were entirely empty, unlike the marginal shortages in the cited cases. The government supported this distinction, asserting that the previous judgments do not apply to this case due to the significant difference in circumstances.

Conclusion:
The government concluded that the steamer agent is liable for the short-landing or non-landing of goods as per Section 116 of the Customs Act, 1962. The imposition of a penalty does not require proof of mens rea. The previous judgments cited by the applicant do not apply to the present case due to differing circumstances. Therefore, the impugned order-in-appeal was upheld, and the revision application was rejected for lack of merit.