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TMI Blog2001 (11) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... e to depart from the customs station unless its officers have minutely examined the whole case and determined the consequences for not accounting of goods. Such could not be the intention of the Legislature. Alternatively the learned counsel for the appellants referred to the facts of the case to canvass that even if the appellants are liable under the law to be served with the show cause notice, the respondents authorities have on facts not proved the averments made in the show cause notice. Such a submission is factually incorrect and legally impermissible. All the authorities on facts have found that the shortages had not been accounted for and actually not denied by the appellants. The findings of fact arrived at by all the authorities under the Act could not be disturbed by the High Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India. - 2762 of 2000 - - - Dated:- 6-11-2001 - R.P. Sethi and Y.K. Sabharwal, JJ. [Judgment per : R.P. Sethi, J.]. - The appellants are the aircraft carrier engaged in the business of international air transport of passengers and cargo across various countries. They are also operating in India under bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly argued that as his clients were not the "person incharge" within the meaning of Section 2(31) of the Act and the person incharge had obtained an order from the officer incharge in terms of Clause (e) of sub-section (2) of Section 42 of the Act, no liability could be fastened upon the appellants. Learned Attorney General for India who appeared for the respondents drew our attention to Section 148 of the Act and submitted that though strictly and technically speaking the appellants were not the persons incharge, yet they were 'such persons' as contemplated under sub-section (2) of Section 148 of the Act, liable to penalty and pay for the price for the shortages in unloading of the cargo. 4.In order to appreciate the rival contentions of the parties, a reference may be made to various Sections of the Act which are relevant for the purpose of determining the controversy in these appeals. 5.Section 2(31) of the Act defines "person incharge" to mean : "(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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fulfilment in respect of the matter in question of all obligations imposed on such person in charge by or under this Act or any law for the time being in force, and to penalties and confiscations which may be incurred in respect of that matter." It may be noticed that sub-section (2) of Section 148 was incorporated by way of an amendment. The Objects and Reasons for its incorporation were notified in Gazette of India on 14-12-1962, Part-II, S. 2, Ext., P. 368 as under : "Clause 148. - Sub-clause (1) corresponds to the existing Section 5. Sub-clause (2) is a new provision which makes the agent responsible for all the penalties and confiscations to which the person-in-charge of a conveyance may be liable. Since the person-in-charge of a conveyance has to leave with the conveyance, it is necessary that his agent in India should be made responsible for all the penalties and confiscations." 8.While interpreting a statute the court should try to sustain its validity and give such meaning to the provisions which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cargo manifest. They bring out cargo in pallets and ULDs which contains many number of packages relating to number of Master Airways Bill and House Airways Bills. Thereafter they carry the pallets and the ULDs by their transport to the cargo terminal for handing over to the Airport Authority of India (the custodian). At this stage pallets and ULDs are opened and packages relating to each Master Airway Bill House Airway Bill are unloaded to the ground and handed over to the custodian by the representatives of the airlines. At this stage the airlines tally the goods with the cargo manifest and a segregation report is prepared indicating the account of cargo handed over by the airlines. Any discrepancy in number of packages not handed over as found short against a particular airway bill or the package if found in damaged condition is recorded. The segregation report is jointly signed by the airlines, AAI and the customs. Before this stage the custodian have no mechanism to know as to how many packages are contained in the pallets and ULDs and as to whether they relate to cargo manifest or not. In such circumstance custody cannot be passed on to a custodian unless a person carryi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for its departure on prima facie satisfaction that the person incharge of the conveyance has unloaded the goods which apparently do not show the levy of a penalty under Section 116 of the Act. Even after compliance of the provisions of Section 42 if it is found that the goods unloaded are short of quantity, the Designated Officer under Section 116 of the Act can proceed with the matter and impose penalty after following the procedure prescribed under the Act. The officers contemplated under Sections 42 and 116 are different authorities, obviously for dealing with different situations. 13.It may be noticed that sub-section (2) of Section 148 was enacted to give relief to the aircraft carrier and the officer incharge of a conveyance and permit him to leave with the conveyance by making his agent and person representing him responsible for all the penalties and confiscations. Accepting the submissions of the appellants in this context would defeat the purpose of incorporation of sub-section (2) of Section 148 of the Act and make the working of the Act impractical. Such an interpretation would be detrimental both to the carrier, the officer incharge on the one hand and the revenue a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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