2022 (10) TMI 1017 - AT - Customs

Levy of penalty on steamer agent - Undeclared consignment - Section 112(a) of the Customs Act, 1962 - violation of conditions / instructions contained in the Board Circular No. 56/2004 dated 18.10.2004 read with Public Notice No. 152/2004 dated 19.10.2004 - import of Aluminium Scrap - HELD THAT - The pre-shipment inspection certificate, as required, is to be furnished at the time of clearance of the goods by an importer and hence, any other person including a Steamer Agent has no locus to meet the above requirement. The responsibility was that of the importer, as prescribed, and in any case, the non-fulfilment of the above requirement would not ipso facto tantamount to declaring the goods as prohibited under Section 111(d) ibid. This is because Section 111(d) could be invoked only when any goods are imported or attempted to be imported contrary to any prohibition imposed and in any case, it is not the case of the Revenue that the import of Aluminium Scrap was never prohibited under any law for the time being in force. Moreover, Revenue has not whispered anywhere if it was the duty of the Steamer Agent to seek clearance of any goods since it is the importer who is required to fulfil any obligations at the time of clearance of goods . The penalty under Section 112(a) of the Customs Act, 1962, as levied and confirmed on the appellant, is not sustainable - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
Justifiability of penalty under Section 112(a) of the Customs Act, 1962 on the appellant.

Analysis:

Issue 1: Justifiability of penalty under Section 112(a) of the Customs Act, 1962

The judgment revolves around the imposition of a penalty under Section 112(a) of the Customs Act, 1962 on the appellant. The appellant, a Steamer Agent, was involved in the import of Aluminium Scrap, which led to the issuance of a Show Cause Notice proposing confiscation of goods and imposition of penalties. The appellant contested the penalty imposed, arguing that the responsibility to furnish pre-shipment inspection certificates rested with the importer, not the Steamer Agent. The appellant's compliance with Board Circulars and Public Notices was also questioned. The First Appellate Authority upheld the penalty, citing a Memorandum from 2014 on Shipping Lines' responsibilities. However, the Tribunal found the penalty unsustainable, emphasizing that the importer, not the Steamer Agent, bore the obligation to meet clearance requirements. The Tribunal highlighted the absence of any prohibition on Aluminium Scrap imports and the delayed invocation of the Memorandum from 2014, ultimately setting aside the penalty under Section 112(a) of the Customs Act, 1962.

The Tribunal's analysis delves into the regulatory framework governing pre-shipment inspection certificates for imports, referencing the Handbook of Procedures issued by the Directorate General of Foreign Trade (DGFT) and the Foreign Trade (Development and Regulation) Act, 1992. The Tribunal clarified that the importer's responsibility to furnish pre-shipment inspection certificates at clearance absolved the Steamer Agent of that duty. The judgment emphasized that the failure to meet this requirement did not automatically render the goods 'prohibited' under Section 111(d) of the Customs Act, 1962, as no prohibition on Aluminium Scrap importation was established. The Tribunal underscored that the Steamer Agent was not obligated to ensure clearance compliance, as it was the importer's duty. Additionally, the Tribunal scrutinized the delayed application of the 2014 Memorandum on Shipping Lines' responsibilities, deeming it inapplicable due to the significant time lapse since the import in question. Consequently, the Tribunal concluded that the penalty under Section 112(a) of the Customs Act, 1962 imposed on the appellant was unjustifiable, leading to the setting aside of the penalty and allowance of the appeal.

In conclusion, the judgment meticulously examines the imposition of penalties under Section 112(a) of the Customs Act, 1962 on the appellant concerning the import of Aluminium Scrap. By dissecting the regulatory obligations of the importer and the Steamer Agent, the Tribunal elucidates the nuanced responsibilities entailed in import clearance procedures. The judgment's thorough analysis of statutory provisions, circulars, and memoranda underscores the importance of upholding legal standards and procedural fairness in customs enforcement matters.