2012 (8) TMI 661 - AT - Customs

Confiscation of vessel and penalty imposed - alleged violation of Section 111 of Customs Act - Revenue alleged non- fulfilling of Customs formalities with regard to vessel viz no Customs permission, no immigration permission, non fulfilling of visas formalities - appellant requested to take up the matter for adjudication without issuance of SCN and also personal hearing - Held that - Commissioner could not consider the submissions made now by the Appellants at the time of adjudication, since the Appellants had waived the show cause notice and personal hearing. The submissions made now by the Appellants are required to be considered. In these circumstances, the case is remanded to the Commissioner to consider the submissions made by the Appellants and decide the issue afresh.

Issues Involved:
1. Confiscation of vessel M/V Pandaw 4 and Tug Century Star 1.
2. Imposition of penalties on various parties.
3. Compliance with Customs formalities and documentation.
4. Validity of the importation process and permissions obtained.
5. Allegations of smuggling and illegal importation.

Issue-wise Detailed Analysis:

1. Confiscation of Vessel M/V Pandaw 4 and Tug Century Star 1:
The Customs Officers intercepted the vessel M/V Pandaw 4 and found no proper shipping documents or licit documents for its importation. The vessel was towed by Tug Century Star 1 from Myanmar to Sagar Road and then propelled to Kolkata. The Commissioner ordered the confiscation of M/V Pandaw 4 under Section 111(a), (b), (d), and (h) of the Customs Act, 1962, and the Tug Century Star 1 under Section 115(2) of the Customs Act, 1962. However, there was an option to release the vessels on payment of redemption fines of Rs. 50 lakhs and Rs. 75 lakhs respectively.

2. Imposition of Penalties on Various Parties:
Penalties were imposed on several parties:
- M/s. B. Ghosh & Co. Pvt. Ltd.: Rs. 60 lakhs under Section 112(a) of the Customs Act, 1962.
- M/s. Century Star Shipping Ltd.: Rs. 60 lakhs under Sections 112(a) and 112(b) of the Customs Act, 1962.
- M/s. Pandaw Cruise India Pvt. Ltd.: Rs. 2 lakhs under Sections 112(a) and 112(b) of the Customs Act, 1962.
- M/s. Pandaw Cruise Company Ltd. (BVI): Rs. 5 lakhs under Section 112(a) of the Customs Act, 1962.
- Mr. Nitin Sakunia of M/s. Travel Bureau: Rs. 10,000 under Section 117 of the Customs Act, 1962.

3. Compliance with Customs Formalities and Documentation:
The appellants contended that they had complied with all procedural requirements and had valid documents such as the bill of lading and export documents. They argued that the steamer agent, M/s. B. Ghosh & Co. Pvt. Ltd., was responsible for meeting the procedural requirements of Customs, including obtaining clearance and filing the Import General Manifest (IGM). However, the Commissioner found that these formalities were not properly met, leading to the confiscation and penalties.

4. Validity of the Importation Process and Permissions Obtained:
The appellants argued that they had obtained all necessary permissions from the Central Government and State Governments of West Bengal and Bihar for the importation of the vessel. They claimed that the vessel was imported to develop waterways in India. They also argued that the mooring place allotted for Pandaw 4 by the Inland Waterways Authority of India (IWAI) was not unauthorized. Despite these claims, the Commissioner found that the importation process was not properly documented and that the vessel was imported illegally.

5. Allegations of Smuggling and Illegal Importation:
The Customs authorities alleged that the vessel Pandaw 4 was smuggled into India without proper Customs and immigration permissions. The vessel was towed from Myanmar to Sagar and then propelled to Kolkata without declaring it as cargo. The Commissioner held that the vessel was imported illegally and ordered its confiscation. The appellants argued that there was no duty involved on the cruise vessel and that the transaction value was wrongly rejected by the Commissioner. They cited various judgments to support their contention that the confiscation and penalties were not justified.

Conclusion:
The case was remanded to the Commissioner for reconsideration of the submissions made by the appellants, as they had waived the show cause notice and personal hearing during the initial adjudication. The Commissioner was directed to consider all issues afresh and provide a reasonable opportunity of hearing to the appellants. The appeals were allowed by way of remand.

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