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TMI Blog1990 (10) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... was imposed and a personal penalty of Rs. 3 lakhs was imposed on M/s. High Sea Foods Ltd., the charterers of the trawlers and the exporters under Section 114 of the Customs Act, 1962 and a penalty of Rs. 2 lakhs each was imposed on the captains of the two trawlers under Section 112 of the Customs Act, 1962 read with Section 111(f) ibid. 4. Brief facts of the case are that M/s. High Sea Foods Ltd. filed two shipping Bills for export of frozen fishes of assorted varieties containing the following particulars in respect of the cargo for shipment: S.B.No date Vessels Name Declared No. of Trays Declared Qty. Declared value 1766/24-8-1988 Hwa Yuan No. 102 6432 192970 Kgs. Rs. 28,97,985 1767/24-8-1988 Hwa Yuan No. 101 6501 195040 Kgs. Rs. 29,25,823 The said exporters had chartered the trawlers from the buyers of the fish and were operating these in terms of the permit to fish in the exclusive Economic Zone of India vide Government of India, Ministry of Agriculture (Department of Agriculture and Cooperation) letter No. 30018/CH-21/83-FY(T-1) dated 12-5-1986. Import Manifests wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th an undertaking for production of original documents viz. drawings, registration certificate, which were not available on board the two trawlers. The shipping bills were also assessed after loading value by 20% provisionally for assessment of costs on the quantity ascertained on Lloyds survey. 5. The learned Advocate for the appellants pleaded that both the exporters and the Master of the vessels, the radio operator and the shipping agent acted bona fide and made true declarations for each of the vessels based on their knowledge. He pleaded that there was no mala fide intention on the part of anybody to misdeclare the quantity in the vessel. The learned Advocate briefly adverted to the provisions of Section 7 of the Customs Act and also the definition of the term import as set out in the Customs Act and pleaded that in the, context of these it could not be said that in fact the fish carried in the trawlers were imported goods. He pleaded that the term importer under Section 2(26) of the Customs Act also leans itself to this view. The said definition of the term importer for convenience of reference is reproduced below: importer , in relation to any goods at any time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der as under : In short, in so far as this case is concerned, the survey report of Lloyds both from Cochin and Taiwan are so much at variance and since they were not conducted under identical circumstances including the presence of Customs, no notice is taken. The learned Advocate pointed out that after having stated as above the learned Collector without giving any details held the charge of misdeclaration in the Manifests proved in the following terms :- Thus, it is concluded that the trawlers viz. Hwa Yuan 101 and Hwa Yuan 102 had carried a higher quantity of fish other than was declared in the respective manifests. The quantity declared in the respective Shipping Bills may be taken for assessment purpose. At this stage the learned Advocate drew our attention to the copy of the shipping bill filed wherein the quantity declared has been shown as provisional quantity Nett Kgs. 2,10,950.00 and 2,11,070.00 and pointed out that the assessment as it is, was done provisionally. At this stage it was noticed by the Bench that the quantity shown in the quantity column was N. Kg. 1,92,970.00 and Gross 1,99,402.00 in the first shipping bill and in the second Net quantity 1,95, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the appellants at the time the vessels were in the harbour and when provisional release of the goods were allowed and it was, therefore, incumbent on the learned lower authority to have arrived at his conclusion after taking note of these. 6. The learned Departmental Representative agreed that the learned Collector had omitted to take note of these documents. He, however, generally reiterated the reasoning of the learned Collector. 7. We observe that the appellants have been charged with a misdeclaration of the quantity of fish carried in the two trawlers both in the Import Manifests filed when the vessels entered the harbour and also in the shipping bills filed for the purpose of the export of the fish by the appellants M/s. High Sea Foods Ltd. The point to be examined is whether the learned lower authority has laid any basis for the charges held against the appellants. It is observed that the Log Book was being maintained at both the trawlers and the entries were made in these Log Books for the catch made on day-to-day basis. The learned lower authority has not given any findings as to any discrepancies in these Log Books. However, the learned lower authority has gone by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have gone into the same and arrived at the quantity that was carried in the two vessels based on the specifications therein and the other parameters for the storage of the cargo in the holds and the freezing compartment as revealed by the surveys. We observe there is a discrepancy in the quantum as shown in the Log Book and what was ascertained by the Zonal Director, Fisheries Survey Department and the Lloyds survey. It was for the lower authority to have gone into these discrepancies and thereafter to arrive at a firm basis for arriving at the quantum of the fish carried by the 2 vessels. We observe, as pointed by the learned Advocate, there are no clear findings as to how the quantity of fish can be taken to have been misdeclared in the Manifests as also in the Shipping Bills. We observe that for any misdeclaration to be held against the appellants the one thing that has to be shown is that according to an acceptable basis the quantum of fish is other than what has been declared. When there is no clear basis set out the question of holding that the quantity of fish was misdeclared would not arise. In this view of the matter we hold that the learned lower authority has not analyse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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