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TMI Blog1998 (5) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... rawlers agents filed the import manifest on behalf of the principal. In the general manifest of the Trawlers No. 11, 4615 boxes of assessed fish catch were declared as source bottom cargo, and in the general manifest of Trawler No.12, 4601 boxes of assessed fish catches were declared as source bottom cargo without mentioning any weight. Entry inwards to both the Trawlers were granted on 30-5-1988. On 24-6-1988 both these trawlers around 11.00 p.m. left Marmugoa port surreptitiously by switching off the lights in the incessant weather without port clearance, without filing shipping bills, without paying cess on their catch. On enquiry with the signal station. The appellants reported by their letter dated 27-6-1988 as above and also without completing the legal formalities. Charters M/s. Ocean Products and Shipping Ltd., Visakhapatnam also informed by their letter dated 26-6-1988 that without port clearance fishing Trawlers have sailed off. Efforts made to trace them failed. Efforts were made through Coast Guards/Naval Authorities to locate the fishing trawlers and intercept them to any Indian Port for the purpose of assessing the catch and recover the cess due thereon, but did not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose log books were removed from the fishing Trawlers and taken to Visakhapatnam and reported lost by M/s. Ocean Products Shipping Ltd. The fish catch which has been exported out of India without complying the customs formalities and payment of customs duties i.e. cess is liable for confiscation under Section 113 of the Customs Act, 1962. However, said catch fish is illegally transported out of India and therefore is not available for confiscation. The fishing trawlers Shang Fuh Nos. 11 and 12 were used for illegal export of the fish catch and hence liable for confiscation under Section 115(2) of Customs Act, 1962. However, they are escaped, and cannot be seized and due process under the Act. By not obtaining the port clearance for the sailing of these fishing Trawlers, the Masters of the fishing Trawlers/Agents/Charterers have violated the provisions of Section 42 of Customs Act and thereby rendered themselves for penalty under Section 117 of the said Act. By illegally exporting the fish catch out of India, through the fishing Trawlers Shang Fuh Nos. 11 12. M/s. Ocean Products Shipping Ltd., Visakhapatnam, M/s. Tropi Traders Pvt. Ltd., Singapore, appellant and the Masters of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants are not liable to pay penalty imposed on the Masters of fishing Trawlers, for their illegal acts. If they pay, they will be doing wrongful act, prohibited under the Indian law. The appellants are not holding any amount for the said fishing trawlers. If any amount is paid on their behalf, it amounts to violation of FERA. Appellants have not given undertaking to pay the penalty on behalf of masters of fishing trawlers, under Section 42 of Customs Act, 1962. Appellants are sending the demand notice to the owner/charterers for payment of penalty. Appellants are not liable to pay the penalty for masters of fishing trawlers. Appealable orders are sought for, before initiating the recovery proceedings. In response to that the Asstt. Collector of Customs (P), Vasco-da-Gama, issued a letter dated 1-6-1990 fixing liability under Section 148 of the Customs Act, on the appellant for paying the personal penalty of two masters of the two fishing trawlers under Section 148 of Customs Act, 1962 that appellant was appointed and accepted as the local agents of the vessels, on their arrival, in terms of Section 148 of Customs Act, 1962 and appellant is liable to discharge all obligations impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such by that officer, shall be liable for the fulfillment in respect of the matter in question of all obligations imposed on such person in charge by or under the Act or any other law for the time being in force, and to penalties and confiscations, which may be incurred in respect of that matter. Section 42 of the Act deals with no conveyance to leave without written order by the proper officer, which is the responsibility of the person in charge of conveyance, which has brought any imported goods or has loaded any export goods at a customs station. 1994 (72) E.L.T. 174 in the case of Aravind V. Bhagat v. Collector of Customs, Madras, under Sections 122, 128, 129A of Customs Act, 1962, it is held that Enforcement of Terms of bond against a surety not an order in adjudication under the Act, and therefore not appealable under Section 129(1)(a) of the Customs Act, 1962 (para 5, 6) - Civil liability incurred by the CHA by being a guarantor to the importer; end use bond can be enforced by the department in the manner known to laws. It cannot be short circuited by the department by purporting to pass an adjudicating order. 6. As per the orders-in-original F. No. 11/23/1988-Pr, dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant as agents of two fishing Trawlers owned and chartered by them at the material time, penalty may be recovered from them, due from the Masters of two fishing trawlers. The appellants had filed the entry inward of the fishing Trawlers only, which was in Customs area under Customs control. They had left without knowledge of appellants, without port clearance. Appellant cannot be held responsible for payment of penalties imposed on the Masters of two fishing Trawlers for their illegal acts. By paying such penalties amounts to wrongful act under the Indian law, and contravention of FERA. Appellants are not holding any funds or accounts of the said two Trawlers nor such any undertaking as required under Section 42 of Customs Act, 1962 for paying of penalty on behalf of Masters of two fishing Trawlers Shang Fuh 11 and 12. The notice of demand may be vacated. Appealable orders may be issued before recovery proceedings to enable to file appeal. On the basis of the above demand notice and reply of the appellant. Asstt. Collector of Customs, Haji Bunder, Vasco-da-Gama, states on 1-6-1990 replied the liability of the appellant under Section 142(C) of Customs Act, 1962 stating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within a period of 6 months, to decide whether any further action is necessary or warranted in this matter or not. Then in appeal No. 7/91 the impugned order was issued on 5-6-1991, in para 5, it is observed that the customs authority of Goa could not recover the amount from the charterers M/s. Ocean Product and Shipping Ltd., and stay period was over, further proceedings were taken up by calling the appellant for personal hearing. On 22-3-1991 and thereafter passed the impugned order after hearing parties on 9-5-1991 and 10-5-1991; paras 16 to 36 are the contentions of both sides, both on maintainability of appeal and on merits. In the course of discussion under the heading of findings in paras 37 to 44, it is held that 1-6-1990 is not an adjudicating order on which appeal cannot lie, and 25-10-1988 order-in-original of Additional Commissioner is an appealable order, against the appellant which has become final, as appellant has failed to prefer appeal in time, being an aggrieved person. How far it is correct is to be seen. 10. From the above, it is clear that 1-6-1990 communication is only a demand notice, and not an adjudication order. The principal M/s. Ocean Products and Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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