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Judgment
R. Sudhakar, J.—In W.P. No. 24045 of 2012, the petitioner seeks issuance of a writ of certiorari to call for the records pertaining to the
impugned Order No. 278/2012-Customs, dated July 27, 2012 in F. No. 373/33/SL/12-RA, passed by the first respondent confirming Order-in-
Appeal C. Cus. No. 148/2012, dated March 8, 2012 passed by the second respondent which has in turn confirmed Order-in-Original No.
13347/2010 MCD, dated October 29, 2010 passed by the third respondent and quash the same. In W.P. No. 24046 of 2012, the petitioner
seeks issuance of a writ of certiorari to call for the records pertaining to the impugned order dated August 29, 2012 in F. No, S. Misc. 3/2010-
MCD, passed by the fourth respondent and quash the same.
The brief facts leading to the filing of this writ petition are as follows:
The petitioner/company is a steamer agent of the vessel Maersk Utah, which arrived on September 3, 2009. One Komal Enterprises, Hyderabad,
holder of import and export code imported 110 containers of MS scrap/ plates from U.A.E. Out of 110 containers, 40 containers of MS
scrap/plates of quantity 797.370 MTs. valued at Rs. 1,07,85,965 involving a duty of Rs. 13,83,482 and MS plates of quantity 302.290 MTs.
valued at Rs. 51,11,318 involving duty of Rs. 12,48,253 landed in the port of Chennai and an import general manifest (IGM) was filed in terms of
section 30 of the Customs Act, 1962 (for brevity, ""the Act"").
On investigation by the Dock Intelligence Unit (Container Tracking Cell), on weighment, it was found that the 40 containers, referred to above,
were empty. The statements were recorded from the importer-Rajesh Suresh Jagnani. He, inter alia, stated that he came to know about the empty
containers only after the customs house clearing agent informed him. The petitioner/steamer agent was asked to explain about the empty containers
and K, M. Ravi Varma, line manager of the steamer agent gave a statement on behalf of the petitioner on September 29, 2009. It is the case of the
Department that the line manager confirmed that the import general manifest quantity and description of the cargo was as per the bill of lading and
that he came to know about the 40 empty containers only after the goods arrived. He further stated as follows:
...He further stated that they had allocated the containers in Dubai to the shipper who had taken the containers outside for stuffing and the same
was brought back to the port in Dubai with the seal given to them. They requested for the BL draft and after checking with the Dubai port and
after final confirmation from the shipper they released the original BL. He further stated that they as liners do not know the quantity or the cargo
laden in each container. He further stated that the container weight declared to the vessel operator is as per the declaration of the shipper. The liner
is not aware of the wrong declaration of the shipper. He stated that the seal provided at the load port was intact on arrival.
The fact that the containers were empty was recorded in the mahasar drawn on December 3, 2009 after open examination of the containers.
According to the Department, the import general manifest filed by the petitioner/steamer agent in respect of the vessel subscribed to the declaration
as to the truth of the contents of the import general manifest. The further case of the Department, as is evident from the show-cause notice, is as
follows :
It is found that the containers have been sealed with the seals given by M/s. Caravel Shipping Services Agents present at the port of loading and
the bills of lading have been duly countersigned by that agent as token of loading of the cargo as detailed in the BL and the freight has been prepaid
for the full container load. But in view of the facts explained to in pre-paras, the steamer agent for having not accounted for the MS steel scrap of
the quantity 797.370 MTs. valued at Rs. 1,07,85,965 involving a duty of Rs. 13,83,482 and MS plates ex stock of quantity 302.290 MTs. valued
at Rs. 51,11,318 involving duty of Rs. 12,48,253 (total duty works out to Rs. 26,31,735), is liable for a penalty u/s 116 of the Customs Act,
1962.
Therefore M/s. Caravel Shipping Services, Chennai are required to show cause to the undersigned as, to why a penalty equal to twice the amount
of duty involved in the above case as detailed in the pre-paras should not be levied ''for not accounting for the above said 1099.660 MTs of MS
plates ex stock and MS steel scrap, which has been not landed/short-landed, u/s 116 of the Customs Act, 1962.
A reply to the show-cause notice dated March 24, 2010 was submitted and an order in-original ramp to be passed by the Joint Commissioner
of Customs (MCD) on October 29, 2010. The third respondent, while referring to the statement of K.M. Ravi Varma, line manager of the steamer
agent u/s 108 of the Act came to the conclusion that the steamer agent is answerable for the quantity of goods that were loaded on the containers.
The reasoning given by the third respondent is as follows:
The statement of Shri K.M. Ravi Varma, line manager, dated September 29, 2009 u/s 108 of the Customs Act, 1962 only shows that
whatever is declared on BL has been accepted by steamer agent without verifying its veracity. Apparently, the steamer agent may not be liable for
answering to the description of the contents but is squarely answerable for the quantity. In the instant case, since no quantity was imported as
declared and as seen from the statement of the steamer agent that his agent had affixed the seal on the container, the steamer agent is vicariously
liable for non-accountal of the declared quantity of cargo.
It is not the case of the Department whether or not the steamer agent is a party to any fraud. The steamer agent having failed to deliver the
declared quantity of the manifested goods and could not provide satisfactory answers as per the law for the deficiency to the satisfaction of the
Assistant Commissioner of Customs/DC, the penal provisions under the Customs Act, 1962 are attracted.
The decision of the Bombay High Court in Shaw Wallace and Co. Ltd. Vs. Assistant Collector of Customs and others, relied upon by the
petitioner was distinguished and the third respondent came to the conclusion that the petitioner/steamer agent had affixed his seal on the containers
after stuffing and took charge of the sealed containers. Since no satisfactory explanation was given, the plea of the petitioner that he had no
knowledge of the empty containers was rejected. Therefore, invoking section 116 of the Act, penalty of Rs. 32 lakhs was imposed on the
petitioner for failure to account for short-landing of 40 containers containing MS steel scrap and MS plates.
The petitioner thereafter filed an appeal before the Commissioner of Customs (Appeals), who, by his order dated March 8, 2012 made in
Order-in-Appeal C. Cus. No. 148/2012, upheld the order of the third respondent and confirmed the levy of penalty, as under :
From the above it is clear that the person-in-charge of the vessel, the steamer agent in this case is responsible for unloading the cargo as
manifested by him. In the instant case, the manifested cargo was not at all unloaded in the place of destination in India. The manifest description of
the cargo was not 40 Nos. ''Empty containers''. On the other hand, the description was 797.37 MTs of MS steel scrap and 302.29 MTs of MS
plates ex stock with the rider ''said to contain''. The appellant would have been absolved of his responsibilities, had he unloaded 1099.66 MTs of
some or any cargo with or without variations in such weight of the cargo, under the cover of the above rider ''said to contain'' and then the
appellant is not responsible for the description of the cargo or variations in weight of the cargo as the cargo was unloaded with the seals intact on
the container from the load port. However, the appellant had not unloaded the quantum by weight of the ''said to contain'' cargo. Hence going by
the provisions of section 116(c), the appellant can be charged with a penalty not exceeding the twice the amount of duty that would have been
chargeable on the goods not unloaded, had such goods been imported. The total duty involved was Rs. 26,31,318 had the manifested ''said to
contain'' cargo been imported. The LAA imposed a penalty of Rs. 32,00,000 under the above provisions, which is not in excess of the twice the
amount of duty involved.
In view of the above discussions, legal positions stated therein, 1 do not want to interfere with the lower authority''s order and uphold the
same. The appeal is rejected. Considering the fact that the appellant deposited Rs. 4,00,000 in cash and Rs. 4,00,000 by way of bank guarantee
in compliance with the hon''ble Madras High Court''s order dated September 22, 2011 in W.P. No. 19243 of 2011 emanating from this forum''s
interim order dated August 11, 2011, I order that both the amounts may be adjusted against the total penalty amount of Rs. 32,00,000. I order the
appellant to pay the balance amount in accordance with the procedure laid down for the same.
The petitioner filed a revision before the first respondent and the revisional authority, after considering the factual matrix of the case and the legal
plea taken, by an order dated July 27, 2012, confirmed the order of the second respondent and that order is under challenge before this court on
merits.
Mr. Hari Radhakrishnan, learned counsel for the petitioner contended as follows :
(a) that the petitioner is only a steamer agent and, therefore, penalty against person-in-charge of the conveyance, as contemplated u/s 116 of the
Act, should be imposed only against the master of the vessel as per section 2(31) of the Act;
(b) that on a reading of section 116 of the Act, penalty can be imposed for not accounting the goods if they are loaded in a conveyance for
importation and in the present case, the goods were not loaded in the port of Dubai by the exporter/shipper and, therefore, the petitioner, being a
steamer agent, cannot be held responsible for the 40 empty containers and to fortify the said plea, reliance was placed on the decision of the
Bombay High Court in Seahorse Shipping and Ship-Management Pvt. Ltd. Vs. Union of India (UOI), , and
(c) that in terms of the Bombay High Court decision in Shaw Wallace and Co. Ltd. Vs. Assistant Collector of Customs and others, if a full
container load when unloaded from the vessel and the seals were found intact, then the vessel owner shall not be held responsible for any short-
landing or be made liable to pay penalty, and therefore when the seals of the containers were found to be intact on landing, no penalty should be
imposed on the vessel owner or the steamer agent.
Per contra, Mr. P. Mahadevan, learned counsel appearing for the respondents filed a counter-affidavit and reiterated the stand taken by the
authorities in the orders passed by them.
The facts as above are not in dispute. The issue involves the interpretation of the relevant provisions of the Act as argued by the petitioner
counsel. Admittedly, the petitioner is a steamer agent of the vessel Maersk Utah. In the case of short-landing of the goods, section 116 of the Act
provides for penalty for not accounting of goods and it reads as follows:
Penalty for not accounting for goods.-If any goods loaded in a conveyance for importation into India, or any goods transhipped under the
provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity unloaded is
short-of the quantity to be unloaded at that destination, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the
Deputy Commissioner of Customs or Assistant Commissioner of Customs, the person-in-charge of the conveyance shall be liable,-
(a) in the case of goods loaded in a conveyance for importation into India or goods transhipped under the provisions of this Act, to a pen-alt)'' not
exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had
such goods been imported;
(b) in the case of coastal goods, to a penalty not exceeding twice the amount of export duty that would have been chargeable on the goods not
unloaded or the deficient goods, as the case may be, had such goods been exported.
Section 116 of the Act imposes a liability for penalty on the person-in-charge of the conveyance. The person-in-charge is defined u/s 2(31) of
the Act as follows :
2(31) ''person-in-charge'' means-
(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 person having the chief direction of the train;
(d) in relation to any other conveyance, the driver or other per-son-in-charge of the conveyance.
and in this case, we are concerned with the vessel.
Section 148 of the Act imposes a liability on the agent appointed by the person-in-charge of the conveyance and section 148(2) of the Act
provides that the agent appointed by the person-in-charge of the conveyance and any person who represents himself to any officer of customs as
an agent of any such person-in-charge is held to be liable for fulfilment of all obligations imposed on such person-in-charge by or under this Act
and to penalties and confiscation which may be incurred in respect of that matter. Section 148 of the Act reads as under;
Liability of agent appointed by the person-in-charge of a conveyance.-(1) Where this Act requires anything to be done by the person-in-
charge of a conveyance, it may be done on his behalf by his agent.
(2) 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 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.
A conjoint reading of sections 116, 2(31) and 148 of the Act makes it clear that in a case of short-landing of goods, if penalty is to be imposed
on the person-in-charge of the conveyance, it can also be imposed on the agent so appointed by the person-in-charge of the vessel. There is no
dispute that the petitioner in this case is an agent duly appointed. It has to be noticed that the authorities below have on facts come to the
conclusion that the steamer agent had affixed the seal on the containers after stuffing and the steamer agent took charge of the sealed containers. If
this is the fact, then the customs authorities are justified in taking appropriate action for levying of penalty for the short-shipment or no shipment in
40 containers.
On the factual aspects of the case, therefore, it is very clear that the steamer agent had filed import general manifest for goods which have been
shipped and they also dealt with the customs Department for appropriate orders that has to be passed in terms of section 42 of the Act. Section
42 of the Act reads as follows;
No conveyance to leave without written order.-(1) The per-son-in-charge of a conveyance which has brought any imported goods or has
loaded any export goods at a customs station shall not cause or permit the conveyance to depart from that customs station until a written order to
that effect has been given by the proper officer.
(2) No such order shall be given until-
(a) the person-in-charge of the conveyance has answered the questions put to him u/s 38;
(b) the provisions of section 41 have been complied with;
(c) the shipping bills or bills of export, the bills of transhipment, if any, and such other documents, as the proper officer may require have been
delivered to him;
(d) all duties leviable on any stores consumed in such conveyance, and all charges and penalties due in respect of such conveyance or from the
person-in-charge thereof have been paid or the payment secured by such guarantee or deposit of such amount as the proper officer may direct;
(e) the person-in-charge of the conveyance has satisfied the proper officer that no penalty is leviable on him u/s 116 or the payment of any penalty
that may be levied upon him under that section has been secured by such guarantee or deposit of such amount as the proper officer may direct;
(f) in any case where any export goods have been loaded without payment of export duty or in contravention of any provision of this Act or any
other law for the time being in force relating to export of goods,-
(i) such goods have been unloaded, or
(ii) where the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied that it is not practicable to unload such goods,
the person-in-charge of the conveyance has given an undertaking, secured by such guarantee or deposit of such amount as the proper officer may
direct, for bringing back the goods to India.
As a result of this, it is clear that penalty becomes automatic for not accounting of goods which have been shown as loaded on the vessel in
terms of import general manifest. The respondents were justified in coming to the conclusion that there is no requirement of proving mens rea on
the part of the person-in-charge of the conveyance to fall within the mischief of section 116 of the Act.
The plea of the petitioner is that penalty can be imposed u/s 116 of the Act only if any goods loaded in a conveyance for importation into India
are short-landed and since that is not the case here, section 116 of the Act is not attracted. That plea does not appear to be correct or tenable.
The language of section 116 of the Act is clear on penalty if there is violation as stated therein. This plea has been considered by the Supreme
Court in British Airways Plc. Vs. Union of India and ors, and the Supreme Court has categorically held that penalty u/s 116 of the Act is leviable
for not accounting of goods. It also dealt with the liability of the agent and any person-in-charge of the conveyance, his agent or person
representing the person-in-charge, who deals with the cargo on behalf of the person-in-charge and held that they are liable for penal
consequences. In that case, the appellant, British Airways, an aircraft carrier transporting passengers and cargo, claimed that they are not person-
in-charge of the aircraft and, therefore, they are not liable for shortage of the goods unloaded in terms of section 116 of the Act. Even in that case,
the show-cause notice was issued on the appellant therein alleging short-landing of goods as in the present case. The appellant therein contended
that they are not person-in-charge in terms of section 42(2)(e) of the Act and, therefore, they are under no liability and that plea was repelled by
the Supreme Court by holding that penalty is leviable against the person-in-charge or a person representing the person-in-charge, who accepted to
deal with the cargo on behalf of the person-in-charge. The Supreme Court held as under:
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 the Gazette of India on December 14, 1962, Part II, sec. 2, Ext., page 368 as under :
148.-Sub-section (1) corresponds to the existing section 5.
Sub-section (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.
While interpreting a statute the court should try to sustain its validity and give such meaning to the provisions which advance the object sought to
be achieved by the enactment. The court cannot approach the enactment with a view to pick holes or to search for defects of drafting which make
its working impossible. It is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that
each provision will have its play and in the event of any conflict a harmonious construction should be given. The well-known principle of
harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference
to the other provisions so as to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in
that behalf under the statute. It is the duty of the court to make such construction of a statute which shall suppress the mischief and advance the
remedy. While interpreting a statute the courts are required to keep in mind the consequences which are likely to flow upon the intended
interpretation.
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-in-charge of the conveyance shall be liable in terms of section 116 of the Act. Besides the person-in-charge
of the conveyance, the liability could be fastened upon his agent appointed under the Act or a person representing the person-in-charge who has
accepted as such by the officer concerned for the purposes of dealing with the cargo on his (person-in-charge''s) behalf. Assuming that the
appellants are neither the person-in-charge within the meaning of section 2(31) of the Act nor his agent, it cannot be denied that they shall be
deemed to be a person representing the person-in-charge to the officers of the Customs as his agent for the purposes of dealing with the cargo off-
loaded from the aircraft of the appellant''s carrier....
Accepting the submission of the appellants that after the issuance of an order u/s 42 of the Act no proceedings could be initiated against the
person-in-charge of the carrier would amount to negating the working of the Act and defeating the object sought to be achieved by it. Sections 42
and 116 of the Act are distinct as they deal with different contingencies. Whereas section 42 puts the restriction that no conveyance shall be
permitted to depart from the customs station until a written order to that effect is given by the proper officer under sub-section (2) of it, section 116
deals with the penalty for not accounting for goods unloaded at the intended destination. The purpose of section 42 is to not detain the conveyance
unnecessarily and pass an order for its departure on prima facie satisfaction that the person-in-charge of the conveyance has unloaded the goods
which apparently do not show the levy of a penalty u/s 116 of the Act. Even after compliance with the provisions of section 42 if it is found that the
goods unloaded are short of quantity, the designated officer u/s 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.
It may be noticed that sub-section (2) of section 148 was enacted to give relief to the aircraft carrier and the officer-in-charge 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 person-in-charge on the one
hand and the Revenue and customs authorities under the Act, on the other. Insistence on ascertaining the liability u/s 116 of the Act before passing
an order in terms of section 42 would mean not permitting the conveyance 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
(emphasis supplied)
On a reading of the above decision, it is clear that the petitioner herein, who is an agent of the person-in-charge of the vessel and who is also
the author of the import general manifest; and who has affixed the seal on the container, as is recorded by the original authority and confirmed by
the appellate authority, has stepped into the shoes of the person-in-charge and, therefore liable to levy of penalty in terms of section 116 of the
Act. His liability to penal consequences in terms of section 148 of the Act is attracted for such violation. The decision of the Supreme Court on the
applicability of section 116 of the Act read with section 148 of the Act gets attracted to this case without any doubt or reservation.
The decision of the Division Bench of the Bombay High Court in Seahorse Shipping and Ship-Management Pvt. Ltd. Vs. Union of India
(UOI), relied on by the learned counsel for the petitioner is also a case where the seals were found to be intact, but when shortage of goods stuffed
inside the containers by foreign suppliers was alleged, it was held that shipping agents cannot be made liable. I am unable to accept this contention
in the light of the decision of the Supreme Court in British Airways Plc. Vs. Union of India and ors, Furthermore, as has also been recorded earlier,
there is a definite finding by the respondents that the import general manifest has been filed by the petitioner and the seal was affixed by the
petitioner and he took charge of the sealed containers. Therefore, factually the Division Bench decision of the Bombay High Court may not apply
to the present case. The petitioner, being a steamer agent and acting on behalf of the master of the vessel the person-in-charge, is liable in terms of
section 148 of the Act. Moreover, the Division Bench of the Bombay High Court did not consider the decision of the Supreme Court in British
Airways Plc. Vs. Union of India and ors, , which was delivered on November 6, 2001, though the Division Bench rendered its judgment
subsequently on November 4, 2003. Hence, the two legal plea taken by the petitioner''s counsel fail.
The decision of the single judge of the Bombay High Court in Shaw Wallace and Co. Ltd. Vs. Assistant Collector of Customs and others, also
cannot be countenanced in view of the categorical finding of the Supreme Court in British Airways Plc. Vs. Union of India and ors, where they
have interpreted sections 116 and 148 of the Act to hold that the steamer agent is equally responsible as a person-in-charge, as the words used
are ""any person"". The petitioner herein squarely satisfies the term agent or any person, as he dealt with the goods at different stages of its shipment.
It is another matter for the petitioner to work out his remedy against the shipper for any claim whatsoever for the empty containers said to have
been loaded if he is innocent. As far as the customs Department is concerned, when the petitioner as a steamer agent files an import general
manifest and represents before the customs authorities as an agent of the shipper and conducts all affairs in compliance with the provisions of the
Act, then the provisions of section 116 read with section 148 of the Act get attracted automatically and as a result penalty becomes leviable. The
authorities below were justified in imposing penalty as contemplated u/s 116 of the Act. For the foregoing reasons, I find no good reason to
interfere with the order of the first respondent. Accordingly, W.P. No. 24045 of 2012 is dismissed. Consequently, the writ petition in W.P. No.
24046 of 2012 filed challenging the recovery notice also fails and the same is dismissed. No costs.