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TMI Blog1998 (10) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... 7093 17-7-96 61888107611 16-7-96 SQ408 17-7-96 not legible 96/8639 one out of five 20,000/- 4. 375/263/97 551697790 29-12-95 61886007563 29-12-95 SQ7336 3-1-96 8455 96/104 4 out of 12 3.6 lakhs 5. 375/264/97 2052277 14-2-96 61886147434 14-2-96 SQ408 14-2-96 not legible 96/2026 3 out of 6 1.45 lakhs 6. 375/265/97 18711 12-11-96 61840868240 12-1-96 SQ408 12-1-96 8742 96/527 one out of two 25,000/- 2.1 Briefly stated the Assistant Commissioner imposed penalty under Section 116 of the Customs Act, 1962 for the goods short landed. The Commissioner (Appeals) rejected the appeal. 2.2 The applicants in their revision application have averred that the Commissioner (Appeals) in the impugned orders has committed an error in equating the airlines as agents of the person-in-charge, of the conveyance in terms of Section 148 of the Customs Act, 1962. That Section 148 ibid refers to agents appointed by the person-in-charge of a conveyance, is a positive act of appointing an agent and excludes impliedly appointed agents; whereas Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are void ab initio. Since law does not permit imposition of penalty on anyone else except the person-in-charge, the penalty so imposed is illegal. He also submitted a copy of the Order-in-Appeal Nos. 327 to 352-C/DLH/91, dated 27-9-1991 passed by the Commissioner (Appeals), New Delhi in the case of M/s. Air India wherein the appellate authority set aside the penalty imposed under Section 116 on the airlines instead of on the persons in charge of conveyance. (This order has since been set aside vide O/R Nos. 1097-1122/92, dated 30-6-1992 and reported as 1992 (62) E.L.T. 675 (G.O.I.) in the case of Air India). 3.3 The applicants as principal can never be an agent of the captain of the conveyance unless the former has taken upon himself the responsibilities of the captain by any written communication. The learned Advocate was firm in asserting that there is no such undertaking. 3.4 The learned Advocate on 13-7-1998, quoting extensively from Sections 29 to 42 and in particular Sections 38 and 42 emphasised that Section 116 is not an independent section, it has its origin in Section 42. Unless Section 42 is acted upon, Section 116 cannot. He averred that the person-in-charge has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2(a) supra] sub-section (31) of Section 2 of the Customs Act, 1962 defines 'person-in-charge' in relation to an aircraft the commander or pilot-in-charge of the aircraft. Section 116 ibid cast responsibility on the person-in-charge of the conveyance. Hence for all practical purposes it is the person-in-charge of the aircraft who will be held responsible for any non-accountal of goods loaded in a conveyance but not unloaded at the appropriate destination. It, therefore, follows that show cause notice ought to be issued to such person-in-charge of the aircraft. 5.2 In this regard it was felt necessary to ascertain the practice followed at the IGI Airport New Delhi. As ascertained the same is as under. 5.3 When the aircraft carrying passengers and cargo arrives, the ground staff of the concerned airlines submits the Import General Manifest in various parts, viz., passenger manifest general declaration of the crew and the cargo manifest. The passenger manifest and crew declaration are not being discussed here as those are not the subjects of the present issue. In so far as the cargo manifest is concerned the same is the document originally lodged in the document pouch of the carg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be held responsible for short landing. 5.5 Government therefore, holds that in the given circumstances the airlines are the self appointed agents and having acted for and behalf of the person-in-charge of the conveyance are liable for any action under the Customs Act, 1962 including the Section 116 ibid. 6. In so far as the second point [reference para 4.2(b) supra] is concerned, practically at the time of loading into the aircraft, the person-in-charge is handed over packages of various consignors bound into pallets/containers by the ground staff of the airlines at the load port. It is these pallets/containers that are unloaded at the destination. Hence what the person-in-charge hands over at the destination are these pallets/containers said to contain various consignees goods as packed by the ground staff of the airlines at the load port. It is the responsibility of the ground staff of the airlines at destination to take charge of these pallets/containers and hand them over to the custodian, in this case, the Airport Authority of India (in short AAI). The Customs Public Notice No. 30/86, dated 30-4-1986 vide paragraph 2(a) clearly specifies that it is the responsibility ..... X X X X Extracts X X X X X X X X Extracts X X X X
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