9911796707
TMI Blog1999 (5) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms) on duty, gave permission for off-loading 12 pallets and one Air India trolley containing bulk cargo, and the incoming cargo of this flight was escorted by the IFO from the Aircraft to the Air Cargo Complex. 3 consignments of valuables were manifested in the cargo manifest viz. (1) 4 packets of gold destined for Delhi, (2) 1 packet containing precious stones destined for Jaipur and (3) 8 packets of KLM passage tickets destined for Madras - At the time of deposit of the valuables in the strong room in the Airports Authority of India, the IFO discovered that one packet bearing label of KLM cargo containing Airway Bill No.07442745603 which was a black coloured plastic box wrapped with a white coloured plastic tape, destined for Curacao, via Amsterdam, was not manifested in the cargo manifest for which permission to off-load had been granted. The packet weighing 26 kgs. said to contain gold, was deposited in the strong room of the Airports Authority of India and an entry was made in Airports Authority of India register for valuable goods, to be kept in the strong room with instructions not to clear the same without the permission of the Air Cargo Customs Preventive unit. On 1-12- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs. Shri Mahesh Thakur, Security Officer of KLM Airlines (Cargo) stated in his statement recorded on 26-12-1997 that he along with the IFO (Customs) escorted the valuable cargo from the Aircraft to Air Cargo Complex, that one package containing gold weighting 26 kgs. was recovered from one of the two packages of another gold consignment, that he immediately informed Shri Hariharan and that he did not take any permission for off loading the package weighing 26 kgs. from the aircraft because the valuable cargo had landed in security bags and he had only checked it with the manifest at the time of depositing the same in the strong room. From the statements of various persons, it appeared that M/s. KLM followed a foolproof system of handling of valuable consignments. They have a special department for handling valuables at Amsterdam headed by Director, Valuables. Valuables are escorted and guarded by security staff. Separate sets of documents are prepared for each consignment of valuables. Apart from being manifested in a cargo manifest, a pre-advice is prepared and sent to the destination concerned, before the flight reaches that destination for each valuable shipment, which ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes to Jaipur and KLM passage tickets to Madras, whereas the seized gold consignment was recovered concealed in one of the two security bags which were containing another consignment of gold. This consignment was neither manifested nor was the same mentioned in the pre-advice, sent to Delhi from Amsterdam. No permission was taken for off-loading of this consignment from the Aircraft. Shri P.D. Hariharan, Cargo Officer of KLM, amended the manifest of flight No. KL-871, dated 27-11-1997 himself without any prior permission from the Customs. As per details of the lost consignments submitted by M/s. KLM along with Airway bills meant for export and import, there are as many as 20 consignments which had been lost during the year 1997 for which M/s. KLM had settled claims and if this consignment of gold had not been escorted by IFO (Customs) and a continuous surveillance was not kept, this consignment would also have been a lost consignment. Based on the above, a show cause notice was issued proposing confiscation of 25.100 kgs. of gold under the provisions of Section 111(d) and (f) and imposition of penalty on M/s. KLM Cargo, Royal Dutch Airlines under Section 112, for contravention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught unmanifested into India, thereby attracting the provisions of Section 111(f) which provides that any dutiable or prohibited goods required to be mentioned under the Regulations in an import manifest or import report which are not so mentioned, shall be liable to confiscation. The gold in this case is prohibited goods because it is a restricted item for import and can only be imported against a special import licence. The appellants claim that immediately on noticing that the said shipment had arrived unmanifested, they applied for permission to the Customs IFO and amended the manifest after being permitted to do so. We have perused the copy of the manifest containing typed entries of the goods carried on the Flight No. KL 871, dated 27-11-1997 and find that entry of 26 kgs. of gold has been made by hand and signed by Shri P.D. Hariharan on 28-11-1997, while the IFO put his signatures only on the remarks column that the packages were escorted by him and that an entry had been made in SR register at page No. 111. The Airlines did not request permission to off - load unmanifested cargo by amending the manifest under Section 32 of the Customs Act. Further, Shri Hariharan has clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t comprises something more, i.e. incorporating and mixing up of the goods with the mass of the property in the local area". The Supreme Court has later distinguished this decision in the Central India Spinning and Weaving Mills case, in the case of Gramophone Company of India Ltd. v. Virendra Bahadur Pandey reported in AIR 1984 SC 667. In the case of Shri Ramalinga Mills P. Ltd. v. Assistant Collector of Customs reported in 1988 (14) ECR 264, the Kerala High Court has clearly held that the expression import means bringing into India from outside India and that the importation takes place when the goods enter the territorial waters of India. In coming to this conclusion, the Court has relied upon the full Bench decision of the Bombay High Court in the case of Apar P. Ltd v. Union of India reported in 1985 (22) E.L.T. 644 which affirms its earlier decision in the case of Sylvania and Laxman Ltd. The Kerala High Court has held that the decision of the Supreme Court in the case of Central India Spinning and Weaving Mills case (Empress Mills case) rested on the language of the Statute that the Court was called upon to construe. The Kerala High Court has also distinguished the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of mistake. Further, the Airlines has attributed the cause of mistake to the heavy work load which is not a plausible explanation, since only two shipments of valuable cargo had arrived on KL 300 (Zurich to Amsterdam) on 27-11-1997 and one of these shipments had to be transferred to KL 751 to Curacao and the other to KL 871 to Delhi. Further it has been clearly mentioned in the manifest of KL 300 that the shipment under Airway Bill No. 07442745603 was to be transferred to flight No. 751 and it is inexplicable as to why the shipment covered under the above mentioned Airway Bill has been mistakenly loaded on to KL 871 in spite of such a clear direction in the manifest of the flight to Amsterdam regarding both the consignments. Both shipments were properly labelled, both in respect of Airway Bills as well as destinations. 4 packages containing 83 kgs. of gold destined for Delhi were properly segregated and sealed with Seal Nos. 792 and 793 at Schipol Airport, Amsterdam by the security staff, but there was no seal of KLM on the offending consignment. Further, the defence that the offending goods were meant to Curacao is belied by the fact that no pre-advice was sent to Curacao for 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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