2009 (3) TMI 51 - HC - Customs

Business as Shipping Agents - penalty for non-discharge of the cargo - on cancellation of Item No.29 of the Import General Manifest (IGM), there is no question of discharging the cargo under Item No.29 of the IGM and consequently the question of penalising the petitioners for not discharging the cargo set out in Item No.29 of the IGM does not arise

Summary

Issues:
1. Imposition of penalty under Section 116 of the Customs Act, 1962 for failure to discharge cargo manifested in Import General Manifest (IGM) under a specific item number.
2. Appeal against the penalty order and subsequent dismissal by the authorities.
3. Revision application filed challenging the dismissal of the appeal on the ground of delay and competence of the authority to condone the delay.

Analysis:
1. The case involved a company acting as the Indian Agent of a Shipping Corporation, where a container was initially manifested under Item No.29 in the IGM but was later loaded on a different vessel, leading to confusion. The Assistant Commissioner of Customs imposed a penalty of Rs.14,50,000 on the company for not discharging the cargo as per the original IGM. However, the Deputy Commissioner of Customs later canceled Item No.29 from the IGM, making the penalty unjustifiable as the cargo was discharged under a different item number. The High Court held that with the amendment in the IGM, the basis for the penalty ceased to exist, rendering it unenforceable. Therefore, the penalty order was set aside.

2. The company appealed against the penalty order, presenting the cancellation of Item No.29, but the appeal was dismissed by an authority on the grounds of not producing the cancellation letter before the initial adjudicating authority. Subsequently, a demand notice was received, leading to a Writ Petition challenging the dismissal of the appeal. The High Court allowed the withdrawal of the writ petition with liberty to file a revision application. The revision application was filed, seeking condonation of delay, which was dismissed by another authority. The High Court, considering the cancellation of Item No.29 and the subsequent amendment in the IGM, set aside the orders of dismissal, emphasizing the lack of basis for the penalty due to the cancellation.

3. The High Court further addressed the revision application's dismissal on the grounds of delay and the authority's competence to condone it. The court held that with the cancellation of the specific item number in the IGM, the penalty imposition became unjustifiable, leading to the setting aside of all related orders. The judgment highlighted the importance of amendments in official documents and their impact on penalty enforcement under the Customs Act, emphasizing the need for alignment between cargo discharge and manifest details to avoid unjust penalties.