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TMI Blog2023 (2) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating authority had been set aside by the Tribunal. In such circumstances, the related act of wrong-doing urged by the Learned Authorised Representative has ceased to be and consequently there is no scope for imposition of penalty under section 112 of Customs Act, 1962 on the representative of person-in-charge of conveyance. Appeal allowed. - CUSTOMS APPEAL NO: 27184 OF 2013 - A/ 20011/2023 - Dated:- 7-2-2023 - MR DILIP GUPTA, PRESIDENT AND MR C J MATHEW, MEMBER (TECHNICAL) Shri Aditya Venugopal, Advocate for the appellant Shri K A Jathin, Authorised Representative for the respondent ORDER By order of the Hon ble High Court of Kerala, this challenge of M/s Forbes and Company Limited to the imposition of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for being without any merit. 3. In its appeal before the Hon ble High Court, it was canvassed by the appellant that the non-response to the rejection of application for stay (commonplace usage for the more correct waiver of pre-deposit ) should have had no bearing on the appeal itself as the sole consequence thereof was the liberty available to customs authorities to proceed with recovery of the amount through appropriate empowerment even while the appeal was pending for disposal. It appeared that the other, and fatal, consequence of appeal not being maintainable in the absence of pre-deposit, except to the extent waived by the Tribunal, was not pressed on behalf of Revenue. Again, with that statutory consequence not having been urged o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is dismissed, and the appellant is denied the valuable statutory right before the CESTAT, Bangalore. To bring home the inconsistent orders in the same matter, she invited our attention to the Final Order made by the Tribunal on 18.02.2020 in the appeal filed by M/s.ASEAN Cableship Pvt. Ltd. 4.1 For all the above grounds, it is argued that the orders dated 13.07.2015 and 06.01.2017 are liable to be set aside and Miscellaneous Application C/ROM/21353/2015 is allowed, and Appeal is restored and matter is heard on merits. xxxxx 6.2 The Tribunal in one case through a default order confirmed the order dated 04.04.2013, in the case of the appellant herein and reversed the same order in the case of M/s.ASEAN Cableship Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the guise of foreign going vessel entitled to privileged consumption of stores and bunkers even while in the territorial waters and by incorrect representation while discharging obligations in section 29, section 30, section 40, section 41 and section 42 of Customs Act, 1962, the principal noticee had evaded duty with acts of omission and commission on the part of the other two, including the appellant herein, justifying confiscation of vessel and imposition of penalties. The appellant, as representative of person-in-charge of conveyance, was held responsible for enabling stay in Indian waters for 1450 days interspersed with occasional sorties outside during a total of 1750 days with only one repair having been undertaken beyond th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no doubt that, in accordance with section 148 of the Customs Act, 1962, the steamer agent, as the appellant herein is, assumes full responsibility on behalf of person-incharge of conveyance for compliance with chapter VI of Customs Act, 1962. It is on record, however, that the confiscation of the said vessel for alleged violations of chapter VI of Customs Act, 1962 as well as the duty liability arising from misuse of ship stores and bunkers in the findings of the adjudicating authority had been set aside by the Tribunal. In such circumstances, the related act of wrong-doing urged by the Learned Authorised Representative has ceased to be and consequently there is no scope for imposition of penalty under section 112 of Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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