9911796707
TMI Blog2023 (1) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... erty Marines Syndicate Pvt. Ltd., Globe Link W.W. India Pvt. Ltd. and M/s. Schenker India Ltd. These slot agents were directed to remain present for the hearing before the Assistant Commissioner, and the Assistant Commissioner (Customs) had given them the opportunity and heard the slot agents as well. Thereafter, the Commissioner (Customs) passed an order wherein there was no bifurcation of liability though the order was sent to the Petitioner and these three slot agents. It is the Petitioner who took up the challenge to the order, as according to the Petitioner, since the Petitioner is a reputed firm, it did not want the stigma of the order of penalty. The factual aspect as to the role of enquiry thereafter was not undertaken, and by the order in Appeal and the Revisional orders, the Order-in-Original was confirmed. Prima facie there appears to be a practice of holding an enquiry to ascertain whether it is the steamer agent who has filed the IGM should be held liable for the penalty in the case of short-landing or the liability should be fixed on the slot agent. There are no reason on record why this course of action is adopted in this case when the Petitioner has been consiste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landed. The Petitioner was called upon to state why action should not be initiated against the Petitioner under Section 116 of the Act of 1962. The Petitioner received another notice dated 7 November 2001 referring to the earlier notice dated 20 August 2001 calling upon the Petitioner to appear for a personal hearing. The reference was also made to the letter of the Petitioner dated 6 November 2001 and that the Petitioner was asked to attend a personal hearing with Slot Agents, i.e. Liberty Marine Syndicate Pvt. Ltd., Globe Link W. W. India Pvt. Ltd. and M/s. Schenker India Ltd. 5. The Petitioner submitted an explanation to the Assistant Commissioner on 20 November 2001 without prejudice to the grievance that the show cause notice did not give adequate details. The Petitioner stated that the Petitioner's principal, Pacific International Lines, had only provided containers and the stuffing was done by their shippers and was meant to be discharged at the warehouse; therefore, the Petitioner's principal issued a Bill of Lading to the shippers with the consolidators, principal as the shipper and the Agent as the consignee. The Petitioner accordingly requested that the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order. The contention of the Petitioner that a flat 200% fine was imposed, which is the maximum limit, was rejected on the ground that the fine was within the statutory limit. The Appeal was dismissed on 29 August 2002. 8. The Petitioner filed the Writ Petition No. 3185 of 2002 and Writ Petition No. 6 of 2003. The Petitions were disposed of, setting aside the order passed by the Appellate Authority on the ground that the same was without finding out whether the penalty was imposed on all steamer agents jointly or it was only one steamer agent. Accordingly, the Appeals were restored before the Commissioner. 9. The Commissioner (Appeals), upon remand, considered the contentions of the Petitioner. The Commissioner (Appeals) held that as per Section 116 read with Section 2(31) of the Customs Act, 1962, the Person-In-Charge of the conveyance is the master of the vessel, and as per Section 30 of the Act, it is the person in charge of the vessel who has to deliver the proper officer and IGM making a declaration of the truth of the contents. The Commissioner (Appeals) held that the Petitioner had admitted that the Petitioner was an agent appointed in terms of Section 148 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls of Lading of the slot agents. The learned Counsel submitted that the provisions of the Act relied upon by the Customs Authorities are on the statute books since the year 1962, and it does not take into consideration the various complexities that have entered into the shipping business after the advent of containers and different layers of transactions. The learned Counsel submitted that the Petitioner had repeatedly pointed out the role of the slot agents who were given notice and were also heard, but no action was taken against the slot agents. The Petitioner has filed an additional affidavit placing on record that in other cases, the Respondents have enquired into the role of slot agents and have fixed the responsibility on the slot agents and not only on the marine agents. The learned Counsel for the Petitioner submitted that there is no reason why a similar approach could not have been adopted in this case of the Petitioner. Mr. Jetly, the learned Senior Advocate for the Respondents supported the impugned order and submitted that as per the provisions of Section 116 read with Section 2(31) of the Customs Act, 1962, the Petitioner is rightly held to be liable. 15. The pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that where the Act requires anything to be done by the person in charge of a conveyance, it may be done on his behalf by his agent. An agent appointed by the person in charge of a conveyance and any person who represents himself to any officer of customs as an agent of any such person in charge, and is accepted 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 including penalties and confiscations which may be incurred. In the decision of Shaw Wallace, the learned Single Judge has laid down guidelines for liability for short-landing, and the ones which are relevant are:- (B)(a) Cargo brought in container, F.C.L. Container (Full Container Load). (a) A full container load when unloaded from the vessel and the seals are found intact, then the vessel owner shall not be held responsible for any short landing or be made liable to pay penalty. (b) In cases where the seal is found broken, the Survey report will be prepared of the contents of such container in the presence of Customs Officer and this survey should be carried out within 72 hours after the container is landed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in Appeal and the Revisional orders, the Order-in-Original was confirmed. According to the Petitioner, provisions of the Act regarding the liability of the Agents for penalty and confiscation should be meaningfully read so as to include the slot agents. 17. It has to be kept in mind that Section 116 imposes a penalty and, in that sense, is a penal provision and not a beneficial provision to be construed liberally and widely. However, apart from the legal issue raised by the Petitioner based on the interpretation of Section 116 of the Act, we do not deem it necessary to conclude the issue at present, in view of the additional affidavit filed by the Petitioner. In the additional affidavit, the Petitioner has stated as under:- (1) I am personally aware of the facts of the case and am well versed with the issues in connection with the above Petition. I am making this affidavit in support of the submissions made on 9 December 2022 to place on record copies of three orders passed by the Customs Authorities wherein penalties for short-landing of cargo under Section 116 of the Customs Act were imposed on the slot agents who are shown as the steamer agents for the relevant items t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r it can be seen from this order that the revisional authority noted the guidelines set out in Public Notice No.50 dated 20 March 1992 which are the guidelines set out in the judgment in Shaw Wallace Co. Ltd. vs. Asst. Collector of Customs Anr. 1986 SCC OnLine Bom. 180 and incorporated by the Customs Authorities in the Public Notice as guidelines for the purpose of dealing with steamer agents liability under Section 116 of the Customs Act. (6) There is yet another order dated 21 August 2000 where the main agent James Mackintosh Co. Pvt. Ltd. (vessel owners agent) who had filed the IGM, applied for amendment of IGM as one of the consolidating agents (slot agents) had omitted to include one of the items appearing on the Bill of Lading in the IGM filed by James Mackintosh Co. Pvt. Ltd. The adjudicating authority held the consolidating agent liable for failure to manifest the goods covered by the Bill of Lading and imposed a penalty on the said agent under Section 112(c) of the Customs Act and not the vessel owners agent who had filed the IGM. x x x x 18. The abovementioned incidences cited by the Petitioner are supported by the orders, which are annexed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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