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TMI Blog2000 (9) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... om May 1989. It is unique port inasmuch as it is fully mechanised handling bulk cargo like foodgrains, fertilizers and also containerised cargo. It does not handle break-bulk cargo. ISO Containers are boxes of steel of pre-determined dimensions. The length is standardised at 20 feet and 40 feet. The containers are carried on board cellular vessels. Each cell is designed to contain one 20 feet container. The schematic drawing of a vessel showing the placement of cells is called an outline plan. Essentially the plan is a series of small square each indicating the container position. The outline plan also shows the number of tiers where the containers in a cell are stacked one above the other. A specific numbering system is adopted to show a particular container placed below deck, above deck as also those stacked at Port and Starboard. The outline plan is divided into bays which are cells placed in one line from the front of the vessel to the back of the vessel. Thus to identify the container for the purpose of unloading, one has to know the bay number, the cell number and tier number. The cellular vessels generally follow a fixed route where the dates of calling at intermediate ports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J.N. Port acts as a stevedore as also custodian of all the import or export cargo. The loading and unloading is under the general supervision of Customs. The Port Trust keep meticulous account of the container numbers imported or kept for export. At the end of every shift, such details are entered in the Port Trust computer. The loading and unloading is also separately monitored by the concerned Shipping Lines who appoint independent surveyor for compiling parallel data. 5. Each container when cleared for export is sealed by the line normally with bottle seal which has to be broken to open the container. The customs, after examination, affixes their seal on both the import and export containers. Thus the imported containers would invariably have bottle seals as also a seal put by the Customs at the exporting country. Thus for all the containers available in the container yard, the seals would be visible and intact and where the seal is found to be broken there is immediate examination of the containers by Port Trust and Customs. 6. The import containers would remain in the container yard until the importer files documents for their clearance. When the Bill of Entry is file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow come to the facts leading to the present dispute. 9. A vessel by name M V CMB Medal arrived at J.N. Port. The arrival report was filed and entry inward sought on 24-8-1994. The IGM was filed on 25-8-1994. The advance list of containers showing the container number and weights thereof were earlier filed by Line with the J.N. Port on 22-8-1994. This advance list would enable the Port Trust to draw yard plan for storage of import and export containers. The advance list contained details of 505 containers. The list included 4 containers loaded at Antwerp each weighing at 23.2 Tons. The ship discharged imported containers which included 4 containers loaded at Antwerp bearing the following numbers :- 1. CMBU - 2167391 2. CMBU - 2197729 3. CMBU - 2286744 4. DAFU -4125415 10. On 25-8-1994, the Line requested J.N. Port authorities to place on board 12 containers which had earlier been unloaded from the Vessel CMB Medal. These 12 containers included the 4 containers mentioned above. The 3 containers bearing the prefix CMBU were re-loaded in the vessel on 26-8-1994. 11. The facts hitherto narrated are based on the documents filed by the agents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the penalties. Owners of the ship M/s. Conti-Schepers Schiiffahrts-gessellschaft mb H Co., have filed an appeal challenging the confiscation of the vessel. The case of the appellants were argued by Smt. F.S. Krishnan. Revenue was represented from time to time by Shri Deepak Kumar and Shri B.K. Choubey. 14. We have carefully considered the submissions made by the appellants and have seen the documents tendered. We will first deal with the liability to confiscation of the 4 containers with their cargo under Section 111(f), (g) and (h) of the Customs Act. For ease of reference the same are reproduced below : Sec. 111 (f) any dutiable or prohibited goods required to be mentioned under the regulations in an import report manifest or import report which are not so mentioned; (g) any dutiable or prohibited goods which are unloaded from a conveyance in contravention of the provisions of Sec. 32, other than goods inadvertently unloaded but included in the record kept under sub-sec. (2) of the Sec. 45; (h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of Sec. 33 or Sec. 34; 15. We find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... London Office sent message to the shippers on 10-8-1994 to send specific instructions. The reply was received requesting issue of Bills of Lading showing consignee to order. On 11-8-1994, loading port agents pointed out to their London Office as well as to M/s. CMB, Bombay Office that for these 4 containers bill of lading had not been received. On 11-8-1994, London Office informed that in the absence of specific instructions, a dummy bill has been prepared. The name of the shipper was shown but not of the consignee. The loading agents kept on chasing the shipper without getting any details. This is evident from another message dated 25-8-1994. On 26-8-1994, the shipper finally sent the details. The bill of lading was thereafter issued showing Cheddha Metals as the consignee. The London Office advised the Antwerp office to issue manifest instructions accordingly. This was on 26-8-1994. The same was informed to CMB, Bombay also on the same day. 17. In the meanwhile the ship had reached J.N. Port and had berthed. Since the bill of lading was not received, these containers were not included in the manifest. The containers were shown to be meant for Bombay. They were therefore unload ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bservation that such list was not legal document was not proper. The inclusion in the advance list indicates that their existence was not kept as secret from either of the authorities. 20. The second aspect in favour of the appellants is the contents of the containers which were subjected to thorough search by the customs. Zinc residue was freely importable at the material time and cannot be called as contraband. The consignee is not a ficititious person. Mr. Navneet Cheddha did appear before the Customs. Shri Cheddha had accepted the placing of indent for the goods. The learned Commissioner discounted the acceptance of the consignment by Shri Chedda by doubting the fides both of the shippers and consignee. In fact from the following narration, it would appear that the learned Commissioner for some time ceased to be a unbiased Adjudicator and turned into an investigator : .............. during personal hearing when Shri Navneet Cheddha appeared, I questioned him closely as to how the goods shipped some time in July 1994, formal indent was placed on 25-8-1994 and why the Letter of Credit was opened on 9-9-1994............ ........ Shri Cheddha was further questioned as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine the vires of the Notice. Suffice it to say that the public notice cannot be the plank for the Commissioner's finding as to conspiracy. 25. We have also carefully perused the statements of the concerned persons on record. 26. We find no admission or even a suggestion that the non-mention of the containers in the IGM was a pre-meditated act. On the other hand, all the deponents have claimed it to be an error. The Commissioner has made much of these depositions in attempting to establish the conspiracy. Before the Commissioner and before us also it was claimed that this was a technical error. It was also claimed that similar mistakes had happened in the past and had been permitted to be rectified by the customs by filing supplementary manifest. In the present case, as the documents show inquiries were conducted on board vessel on 27-8-1994. As our narration on paras 9 10 above would show, on the day prior to this date on realising this mistake and pursuant to the request of the Shipping Line, 3 of the containers had already been reloaded on the vessel and the 4th container presumably was in the act of reloading. If the Shipping Line had any intention to clear the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal [.....] : Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be. 31. We have earlier held that the Act of non-declaration of 4 containers in the manifest was a technical error. On this ground, we would have taken a very lenient view of confiscation of the vessel, but we find that there is a very serious lacuna in the show-cause Notice. 32. Section 124 of the Act is very specific and reads as under : No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person - (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed upn them therefore do not sustain. A number of officers of the shipping agents M/s. CMB Transport have also been similarly charged. We have seen their statements. We have also seen the chain of events. The chain does not show that these Officers were personally responsible for rendering the containerised cargo liable to confiscation. Therefore, the orders of penalties imposed upon them also do not sustain. 35. The agents M/s. CMB Transport Agency, however, are placed differently. The individual officers were working for the agency. The agency as such should have understood the requirements of the Customs Act and should have educated their officers in the legalities and the documentary and other requirements of loading and unloading of the goods. Therefore, although the individual officers are not required to be penalised, the orders of the penalties on the agent would sustain. At the same time we hold that the quantum thereof would warrant considerable reduction. 36. We summarise our findings as below : (i) The orders of absolute confiscation of the Zinc Residue etc. under 111(b) are upheld. (ii) The orders of absolute confiscation of the containers are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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