1998 (5) TMI 227 - AT - Customs

Issues Involved:
1. Liability under Section 148 of the Customs Act, 1962.
2. Violation of customs formalities and port clearance requirements.
3. Imposition of penalties under Sections 114 and 117 of the Customs Act, 1962.
4. Maintainability of the appeal against the demand notice dated 1-6-1990.

Detailed Analysis:

1. Liability under Section 148 of the Customs Act, 1962:
The appellant, M/s. Choughule Brothers, was appointed as the local agent for two foreign fishing trawlers, Shang Fuh Nos. 11 and 12, by their charterers M/s. Ocean Products & Shipping Ltd., Visakhapatnam. The trawlers arrived at Marmugoa port with a catch of marine products. The appellant filed the import manifest on behalf of the principal. Under Section 148 of the Customs Act, 1962, the agent is liable for the fulfillment of all obligations imposed on the person in charge of the conveyance, including penalties and confiscations incurred.

The Additional Collector of Customs and Central Excise, Goa, in the order dated 25-10-1988, stated that although no separate penalty was imposed on the appellant, their liability under Section 148 of the Customs Act, 1962, would remain. This liability was reiterated in the communication dated 1-6-1990, where the appellant was held responsible for paying the penalties imposed on the masters of the fishing trawlers.

2. Violation of Customs Formalities and Port Clearance Requirements:
The fishing trawlers left Marmugoa port surreptitiously without port clearance, without filing shipping bills, and without paying cess on their catch. This departure was in violation of Section 42 of the Customs Act, 1962, which mandates that no conveyance shall leave without a written order from the proper officer. The masters of the trawlers, along with the agents and charterers, were found to have violated this provision, rendering them liable for penalties under Section 117 of the Customs Act, 1962.

3. Imposition of Penalties under Sections 114 and 117 of the Customs Act, 1962:
The Additional Collector of Customs and Central Excise, Goa, imposed penalties on various parties involved:
- A cess of Rs. 1.5 lakhs was demanded from M/s. Ocean Products & Shipping Ltd.
- A penalty of Rs. 2 lakhs was imposed on M/s. Ocean Products & Shipping Ltd.
- Personal penalties of Rs. 2.5 lakhs each were imposed on the masters of the fishing trawlers.
- The fishing trawlers were confiscated with a redemption fine of Rs. 1 lakh each to be paid by M/s. Tropi Trading Pvt. Ltd., Singapore.

The appellant was not initially penalized, but their liability under Section 148 of the Customs Act was established, making them responsible for the penalties imposed on the masters of the fishing trawlers.

4. Maintainability of the Appeal Against the Demand Notice Dated 1-6-1990:
The appellant argued that they were not liable to pay the penalties imposed on the masters of the fishing trawlers and that the demand notice dated 1-6-1990 was not an appealable order. The Collector of Customs (Appeals), Bombay, in the order dated 10-8-1990, stayed the recovery from the appellant for six months and instructed the lower authorities to initiate recovery proceedings against M/s. Ocean Products & Shipping Ltd.

However, in the subsequent order dated 5-6-1991, the Collector of Customs (Appeals), Bombay, held that the 1-6-1990 communication was merely a demand notice and not an adjudication order. The appeal against such a demand notice was deemed not maintainable. The original adjudication order dated 25-10-1988, which established the appellant's liability, had become final as the appellant failed to appeal against it in time.

Conclusion:
The appeal was dismissed as not maintainable. The appellant's liability under Section 148 of the Customs Act, 1962, for paying the penalties imposed on the masters of the fishing trawlers was upheld. The demand notice dated 1-6-1990 was considered a continuation of the original adjudication order dated 25-10-1988, against which the appellant had not filed a timely appeal.

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