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TMI Blog1991 (10) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 9/89-Addl. Collr., dated 30-3-1989 of the Additional Collector of Customs and Central Excise, Panaji, Goa. 2. There is a delay of 27 days in filing the Reference Application. Due cause for delay is shown and we are satisfied that the delay is not on account of any negligence. Delay is accordingly condoned. 3. Two trawlers registered at Panama and chartered by M/s. BRS Marine Ltd., New Delhi, who held the permit to fish, issued by the Ministry of Agriculture, vide permit dated 18-12-1985, had reached the Port of Marmagoa, on 4-3-1988, and their declared base port was Goa. For their entry Inwards etc. papers were filed by M/s. Chowgule Brothers (the Respondents in the application). The vessels were then given Port Clearance for sailing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, and this Bench, vide its order as aforementioned, observed that even the adjudicating authority had not held the Respondents here, to have themselves contravened the provisions and did not impose any personal penalty on them and held that, there was no undertaking obtained by the Customs authorities from these Respondents, holding them answerable for any penalty that could be imposed on the masters and that the undertaking filed vide Section 42(2)(e) of the Act, was only in relation to the provisions of Sec. 116 of the Act, and as such, the Respondents were not the agents for any purpose other than filing Entry Inward/Outward papers and obtaining port clearances and once the port clearance was issued, without taking any undertaking, fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he foreign country and that till such clearance was given, the Respondents continued to remain liable as the Agents, and with liability existing, provisions of Section 148 would stand attracted. He strenuously urged that the authorisation did not indicate to have been given for a limited or specific purpose, and ought to have been read in broader sense as to mean final clearance, and mis-reading of the said document, gave rise to an issue of law, permitting reference to the High Court. He pleaded that the issue called for also interpreting the provisions of Section 148 of the Customs Act. 7. Shri N.P. Jagesha, the Ld. Adv. for the Respondents, however, pleaded that there was no question of law, as the Tribunal s finding was based purely o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from an Agent, but even assuming that by virtue of Section 148(2) of the Customs Act, that could be done, one cannot attribute any liability vide the said provision, to a person, who has not been appointed as an agent in relation to such function or performances by the principal. The submission of Mr. Mondal, the Ld. SDR, that Section 148 of the Customs Act as it stands, makes the agent liable for all or any of the acts of the principal, and further plea that the said provision is incorporated in the statute, specifically for the said purpose, may have a considerable force, but the same has to be circumscribed by the qualification that the person ought to be an Agent for that purpose also. 12. In the order that this Bench has passed, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be construed to have arisen out of the order. The proposition pleaded may have answers both in affirmative and negative, but each one will depend on the facts and circumstances and when a particular set of facts have weighed with this Bench to hold in a way, provisions of Section 130(1) of the Customs Act, cannot be invoked. It is important to note here, that, the department has not contended that the Tribunal has committed any error on factual aspects. If it was so alleged, the department could have moved a rectification application, but that is not done. 16. For the reasons as stated above, there appears no ground on which reference to the High Court, vide Section 130(1) of the Customs Act is called for. The application is th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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