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TMI Blog2016 (6) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... y to pay penalty set forth in Section 116 of the Act upon the 'person-in-charge' is, therefore, liable to be fulfilled by the agent appointed by such person-in-charge of the conveyance as well. The import manifest is not a mere document of intimation of arrival of a vessel carrying imported goods but also contains a verified statement to vouchsafe for the truthfulness of the contents of the import manifest. The importance and significance of lodging import manifest can be gazed from Section 31 of the Act. Lodging import manifest under Section 30 of the Act has a direct bearing upon the controversy at hand. Thus, whoever lodges the import manifest with the proper officer of the Customs, acts as such, as an agent of the Master of the vessel. Whoever delivers the import manifest under sub-section (1) of Section 30, other than the person-in-charge of the carrier/conveyance falls within the expression "any other person" The appellant, for all practical purposes, is liable to be treated as "any other person" if not as an agent of the "person-in-charge" of the conveyance and hence liable to suffer the penalty as provided for under Section 116 of the Act. - Decided against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 116 of the Act for failure to account for short landing of 797.37 MTS of Steel Scrap and 302.29 MTS of MS Plates. 4. During the course of passing the said order, the Primary authority has found, as a matter of fact, that Bills of Lading have been duly countersigned by the Load port agent as token of loading of the cargo as detailed in the bill of lading and the freight has been prepaid for the full container load. The bills of lading have been signed by the Steamer agent, thus taking the responsibility for the veracity of the contents of the bill of lading. It was further found, as a fact, that the Steamer agent had given the seal to their agent for fixing upon the container after stuffing. Thus, as per the bill of lading 40 containers are supposed to contain 797.37 MTS of MS Steel Scrap and 302.29 MTS of MS Plates, but such imported cargo has not landed. 5. An appeal against the Order-in-Original dated 29.10.2010 has been preferred before the Commissioner of Customs (Appeals), Custom House, Chennai. The appellate authority has noticed that M/s Caravel Shipping Services Private Limited, Chennai has filed the Import General Manifest in terms of and in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri.S.Murugappan, for the learned counsel for the appellant and Sri.V.Sundareswaran, learned counsel for the respondents. 8. It is urged before us by the learned counsel for the appellant that the seals applied to the 40 containers, which were unloaded were found to be intact and in such a case, no liability can be fastened on to the appellant. He placed reliance, in support of the above plea, upon the judgment rendered by the Bombay High Court in Shaw Wallace Co.LTD Vs. Assistant Collector of Customs and others (1986 (25) E.L.T. 948 (Bombay) ). It was further contended that the appellant is not the person-in-charge and hence it cannot be rendered liable to pay the penalty. He placed reliance upon the judgment rendered by the Bombay High Court in Seahorse Shipping Ship-Management PVT.LTD Vs. Union of India (2004 (163) E.L.T. 145 (Bombay) ) and the judgment rendered by this Court in Marine Container Services Vs. Deputy Commissioner of Customs and another (2005 TIOL 89 (Madras) ). 9. Per contra, learned counsel for the respondents, apart from subscribing to the reasoning applied by the learned Single Judge, placed reliance upon the Division Bench judgment of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exceeding twice the amount of duty that would have been chargeable on the goods not unloaded. 14. The argument of the learned counsel for the appellant has proceeded upon the premise that the above provision renders only the person-in-charge of the conveyance liable to the penalty but not an agent or any other person acting on behalf of the person-in-charge of the conveyance. 15. Various expressions found in the statute have been defined in Section 2 of the Act, which was ushered in by the Parliament to curb the dents on the revenue caused. Sub-section 31 of Section 2 defines the expression person-in-charge in the following words: (31) person-in-charge means, (a) in relation to a vessel, the master of the vessel; (b) in relation to an aircraft, the commander or pilot-in-charge of the aircraft; (c) in relation to a railway train, the conductor, guard or other person having the chief direction of the train; (d) in relation to any other conveyance, the driver or other person-in-charge of the conveyance; 16. It is true that the Master of the vessel answers the expression 'person-in-charge' but not his agent. But, however, in this context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct upon the 'person-in-charge' is, therefore, liable to be fulfilled by the agent appointed by such person-in-charge of the conveyance as well. Sub-section (2) of Section 148 proceeded further and also rendered any person representing himself to any officer of customs as an agent of any such person-in-charge is also equally liable if he is accepted as such by the officer of the customs. There is no dispute on the factual score that the appellant represented, before the officers of the Customs, on behalf of the person-in-charge and the officers of the Customs accepted it. 19. In this context, it would be appropriate to notice Sub-section (1) of Section 30 of the Act, which required the person-in-charge of a vessel carrying imported goods or any other person specified by the Central Government by notification, in the case of a vessel deliver to the proper officer an import manifest prior to the arrival of the vessel. Sub-section (2) thereof further required the person delivering the import manifest to make and subscribe to a declaration as to the truth of its contents. Thus, the import manifest is not a mere document of intimation of arrival of a vessel carrying imported g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to be a person representing the office- in-charge to the officers of the customs as his agent for the purposes of dealing with the cargo off-loaded from the aircraft of the appellants carrier. 22. Learned single Judge has followed the above principle enunciated by the Supreme Court in British Airways PIC s case (referred to supra) while dismissing the present writ petition, from out of which the appeal arises. 23. In fact, the Central Government by its Notification No.111/2003 Cus. (N.T.) dated 19.12.2003 as amended by Notification No.17/2004 Cus. (N.T.), dated 16.02.2004 under Section 30 of the Act, specified that any person other than carrier, who is authorised to issue delivery orders in favour of an importer on the basis of which goods are permitted to be delivered to such importer by the custodian of the goods, as any other person for the purpose of the said section. Thus, whoever delivers the import manifest under sub-section (1) of Section 30, other than the person-in-charge of the carrier/conveyance falls within the expression any other person . This notification issued by the Central Government is in fact in consonance with the principle set forth on 06.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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