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TMI Blog1986 (5) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... n briefly dealt with the facts of the case relating to the arrival of the ship in Bombay harbour and its rummage on 29-12-1976 and 30-12-1976 resulting in recovery of various foreign goods on both those days totally valued at Rs. 2,38,816/-at the local market rate. These facts led to the investigations, issue of the show cause notice and the determination of the offence under the impugned order of the Addl. Collector dated 12-10-1977. The Addl. Collector confiscated the goods absolutely under Section 111(d) and (f) of the Customs Act, 1962, confiscated the ship under Section 115(2) of the C.A. and allowed its redemption on payment of a fine of Rs, 2,00,000/- and levied a penalty of Rs. 10.000/- on the Master of the vessel and Rs. 5,000/- each on two crew members S/Shri George M. Valanzona and Primo Perus Jr. The Master and the Company filed an appeal to the Board against the confiscation of the vessel and the levy of the penalty of Rs. 10,000/- on the Master and the Board in the Order-in-Appeal reduced the penalty from Rs. 10,000/-to Rs. 5,000/- while upholding the other part of the Addl. Collector s order. No appeals were filed by the two crew members. The Revision Application now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed to the agents in this behalf could be treated as sufficient, the same was issued after the expiry of six months period as stipulated under Section 110(2) of the Customs Act, and hence the confiscation of the ship was not legal. Therefore from this point of view also the confiscation of the ship was illegal and she requested that the same be set aside. In the end, she contended that the Addl. Collector s finding that the smuggled goods could not be related to the cargo meant for discharge at Kuwait was not correct. The consignees of the goods at Kuwait had filed the claims for the goods shortlanded there and she referred to the statements of such claim in the paper book on behalf of the various importers. She further contended that the Master had taken all the precautions against the misuse of the ship and he had taken rounds of the ship and given warnings to the crew members against indulging in smuggling. She, therefore, requested that the appeal be allowed. 3. S.D.R. Shri Pal contended in reply that the ship was not rummaged in a routine course. The Customs received a definite information that there were smuggled goods on board the ship and the seizures had been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of their ship in smuggling. So far as the liability of the two members of the crew was concerned and their conviction in a criminal offence, Shri Pal submitted that this would not absolve the appellants from their responsibility and shift the same to the two crew members. Shri Pal argued that the criminal proceedings and the departmental adjudication were independent of each other and he relied on this behalf on the decision of the Bombay High Court in the Writ Petition No.1004/81 decided on 14-2-1985 in the case of Maneklal Pukhraj Jain v. The Collector of Customs, Bombay. Shri Pal further contended that the retraction of the statements by the two crew members need not be accepted by the adjudicating authority and he relied in this on behalf of the decision of the Kerala High Court in the case of Kollatra Haji Abbas 1984 (15) E.L.T 129. Shri Pal reiterated that the Master was fully aware of the presence of contraband goods on board the ship and he had failed to declare the same to the Customs authorities. Hence the confiscation of the ship. was correct and the fine in lieu of confiscation was not beyond the statutory limit prescribed under Section 115 nor was it excessive-or h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the confiscation of the ship under Section 115(2) is concerned, it is seen that there is no allegation in the show cause notice or any finding in the Addl. Collector s order that the owners of the ship were aware of the smuggling of the goods. So far as the Master is concerned, there is also no evidence in this behalf. On the other hand, the penalty levied on the Master by the Addl. Collector of Customs has been set aside by the Board on appeal. We find that this order is correct as there is no evidence to implicate the Master in the import of the contraband goods valued at Rs. 2,38,816/- which were seized from the ship. Therefore the question which remains to be decided is whether the owners or the Master was required to take any precautions as mentioned in Section 115(2) and whether such precautions were taken. It is also admitted that no rules have been framed as envisaged by Section 115(2). During the course of the arguments in the appeal, the learned advocate of the appellants referred to the Calcutta High Court s decision in the case of J.D. Crighton Co. AIR 1969 Calcutta 260. Similarly, the Learned Senior Departmental Representative referred to the decision of the Cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be established to render the ship liable to confiscation. Accordingly, we find that there is no substance in the appellant s contention that Section 115 would not apply in the circumstances of the present case. One technical objection raised by the appellants in the appeal and also at the earlier stages of the same case is that the owners of the vessel were not given the show cause notice as required under Section 124 of the Customs Act even though the owners were a well-known party. The fact that the owners of the ship were not given a notice for its confiscation is borne out by the show cause notice. But the conclusion drawn by the learned advocate of the appellant on aforesaid basis does not necessarily follow from that fact. The learned advocate is completely oblivious of the fact that under Section 147(3) of the Customs Act the steamer agents namely the appellants in this case were expressly authorised by the owners to be their agents in respect of all or any purposes of this Act. Therefore, the requirements of Section 124 have been fully complied with and Kum. Sen s submissions in this behalf are not tenable. Besides, it is a common knowledge that the steamer agents execu ..... 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