9911796707
TMI Blog2002 (9) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that goods contained in container No. ICSU 5060556 was removed illegally while in transit from Chennai Port Trust to CFS, Virugambakkam without payment of duty, the officers of the DRI detained the said container at CFS Virugambakkam on 12-9-1988. On enquiry, it was noticed that the goods stuffed in the said container was imported by the Chennai Branch of ITDC, DFT division, Jeevan Vihar, Sanad Marg, New Delhi, vide Bill of Entry (BE) No. 51211 dated 9-9-1998. As per the BE and the invoice, the consignment consisted of 999 cartons of assorted brands of liquor of foreign origin. The container was found locked with one time lock No. 011213 and the container was transported from Chennai Harbour to CFS Virugambakkam by Trailer No. TMV 2510 belonging to the Transport Company viz. M/s. AKTP. On examination of the container in presence of the independent witnesses and Shri Gopalakrishnan, driver of the Trailer, Shri E. Vijayakumar, Senior Manager of ITDC who are the importers, Shri Rupan Jaikumar, Clearance Supervisor of M/s. ITDC and Shri P. Raghuraman, Clerk of the CHA viz. Alankar Shipping Trading Co. Pvt. Ltd. it was found to contain only 652 cartons of foreign liquor and the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... container was allotted on a routine equal basis and on 14-9-98 one Shri Satyanarayana of the Transport Company informed him that the container was detained by the DRI officers. He had denied any knowledge about the discrepancy in the quantity of the goods. Statement was also recorded from Shri S. Edwin, Executive, Customer Service of the appellants-Company, wherein he stated inter alia that transporters normally hand over container to the CFS authorities with seal intact and produce all the documents for verification and endorsement which would be recorded by them and as and when the consignee come for delivery order, they hand over the copy of the same to the consignee for inspection and clearance from the CFS. He has also stated that in this case they have received instructions from M/s. ITDC who are the importers stating that the importers have got permission from the Customs for bonding the cargo and the documents were prepared accordingly and contacted the Transport Company for conveyance of the goods. Statement was also recorded from Maran Nallaiah, Director of CHA M/s. Alankar Shipping Trading Co. Pvt. Ltd., Chennai on 14-9-98 wherein he stated inter alia that the transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is the transporter or their driver who should be held responsible for the pilferage and not the appellants who are the Steamer agents. 3. Shri Ranganathan, learned Advocate accompanied by Miss Shyamala, learned Advocate appeared for the appellants and argued the case for a considerable length of time and submitted that in this case the Steamer agents (Appellants) cannot be held responsible for the pilferage of the goods en route from the Chennai Port to CFS Virugambakkam. Shri Ranganathan, learned Counsel submitted that when the container was unloaded from the Vessel, the seal of the container was in tact and this fact is not disputed. He submitted that the responsibility for the pilferage is on the transporter and not on the Steamer agents who are the appellants in this case. 4. Shri Veeraraghavan, learned ACGSC appearing on behalf of the Revenue defended the impugned order and submitted that in this case the Transporter was engaged by the appellants herein as their agents and hence the responsibility rightly was on the appellants to ensure that the goods landed at the destination in tact and they have failed in their responsibility and it cannot be shifted to the transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to be removed on the applications filed by the Steamer agents in terms of Public Notice No. 90/95. As rightly held by the Commissioner in Para 29 of the impugned order the Steamer agents not being the importer cannot be called upon to pay duty and therefore, duty is demandable as penalty under Section 116(a) of the Customs Act, 1962 inasmuch as the Steamer agents were responsible for the shortages noticed at the time of examination of the container and since they have failed to unload the entire quantity carried by them they are liable to pay penalty. The Hon'ble Supreme Court had occasion to interpret Section 148(1), (2) and sub-clause (2) thereto in the case of British Airways PLC v. UOI reported in 2002 (139) wherein the Hon'ble Court held as under in Paras 9 and 13 : "9. The scheme of the Act provides that the cargo must be unloaded at the place of intended destination and it should not be short of the quantity. Where it is found that the cargo has not been unloaded at the requisite destination or the deficiencies are not accounted for to the satisfaction of the authorities under the Act, the person incharge of the conveyance shall be liable in terms of Section 116 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian i.e. Chennai Port Trust authority from the Shipping agent. The Port Trust had only tallied the containers with the tally sheet prepared by them and they found the seal also in tact. In this case this container containing the imported liquor was not to be emptied in the warehouse of the Chennai Port Trust and since it was meant to be carried to the CFS Virugambakkam on the request made by the importer to the Shipping agent and since the Shipping agent had engaged the transporter to carry the container to CFS, Virugambakkam, the Chennai Port Trust authorities are not responsible for any loss which has occurred from the Port Trust on way to the CFS. Similarly, duty cannot be fastened on the CFS who are also custodian of the imported goods because the imported goods have not reached CFS. Had the goods been pilfered from the custody of the Custodian, then under Section 45(3) of the Customs Act, 1962 the custodian could have been made responsible for payment of duty on such pilfered goods whereas this is not the case here. Duty cannot be demanded from the importer either, because the importer has not filed any Bill of Entry and the imported liquor was pilfered before the same was cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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