9911796707
TMI Blog1992 (1) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... ther persons including the appellant who was a shipping agent. In the present case we are concerned only with the legality of the penalty on the shipping agent. 2. Shri K.N. Basha, Ld. Counsel for the appellant contended that there is absolutely no whisper of an allegation against the shipping agent in the show cause notice, much less is there any evidence against the shipping agent in the entire case records to fasten him with penal liability. It was urged that even according to the Department as per the allegation in the show cause notice and also the reasoning of the adjudicating authority in the impugned order, the whole illegal operations were masterminded by the owner of the ship abroad in collusion and conspiracy with the Directors, the Master and the other crew members and penalty is levied on the appellant who was a shipping agent only by fastening penal liability of the owner vicariously on the agent under the Act. The Ld. Counsel submitted when the owner in a foreign country and the Captain of the ship who was the person in charge of the vessel and others have committed an offence under the Act, the agent who indisputably had no knowledge about these things cannot be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... board the vessel in the various documents furnished by it to the Customs Department. In addition, the members of the crew have admitted that a large quantity of zip fasteners were already landed off Pulicat and the rest of the contraband was about to be landed off Mahabalipuram coast. In view of this, it is clear that the vessel had no intention of declaring the items and it is also dear that the attempted smuggling was on behalf of the owners and was encouraged and connived at by the owners and crew of the vessel. Thus, it is very dear that the owners of the vessel have rendered themselves liable to a penalty under Sections 112 (a) and (b) of the Customs Act and M/s. Rajathi Agencies as agents of the owners of the vessel are liable to the penalty. We are afraid the reasoning of the adjudicating authority is not sustainable in law or on facts. Sec. 147 of the Act deals with the liability of the agent and Sec. 147 sub-section (3) and the proviso reads as under :- Sec. 147. 3. When any person is expressly or impliedly authorised by the owner, importer or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act, such person shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in abetting, aiding, carrying, keeping, concealing and selling and thus apart from rendering the goods liable for confiscation as aforesaid they rendered themselves liable for penal action under Section 112 of the Customs Act, 1962. In the above narration the name of the steamer agents, the appellants in the present case, does not figure. However, while asking various persons to show cause the agents have also been mentioned in the following terms : The owners S/Shri Hamid Ibrahim, Samy Elangovan, Asraff, Kamaluddin, John Durai, Agents M/s. Rajathi Agencies, Master of the vessel F. Sevilla, Yogamurthy, A. Benjamin, Md. Salman, Nazamuddin, Firdhouse, Kanakasabhai Prisoody, G. Bose, M.K.S. Abubacker, Sujath Ali, Arulanandam and M. Salihu Pusly are therefore, hereby called upon to show cause to the Additional Collector of Customs, Custom House, Madras-1 within ........... days from the date of receipt/display of this notice as to ..................." A perusal of the show cause notice also shows no direct or indirect evidence has been cited against the appellant, steamer agents of the vessel, showing any complicity on their part in the smuggling activity. However, it is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny goods, it may be done on his Behalf by his agent. It empowers an Agent to act on behalf of the owner, importer or exporter and by virtue of Section 147(3), which for convenience of reference is reproduced below : (3) When any person is expressly or impliedly authorised by the owner, importer or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act, such person shall, without prejudice to the liability of the owner, importer or exporter, be deemed to be the owner, importer or exporter of such goods for such purposes. Such agent is deemed to be the owner or importer or exporter of such goods for such purposes. It follows that any penalty by the deeming provision on the Agent can be there only when the Agent has been authorised expressly or impliedly by the owners of any goods to be their agent in respect of such goods only then the provisions of Section 147(3) could be invoked. In the present case nothing has been brought on record to show that impliedly or expressly the steamer agents have been in any way entrusted by the owners with the work relating to landing or loading of the contraband goods. The steamer agents, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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