Multimodal Transport Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. the show-cause-notice in this appeal was issued to the appellant herein alleging as follows:- "further, m/s. multimodal transport organisation, bombay and m/s. marine transport co. pvt. ltd., bombay being the concerned delivery agents and ship agents respectively, failed to make true and correct declaration as required to be made and in terms of section 30(2) of the customs act, 1962. besides, not declaring the true identity of the declared consignee, it was also revealed that m/s. multimodal transport organization continued to represent the interest of suppliers subsequent to the filing of the menifest in respect of the goods, the import of which are governed by certain restrictions. hence, by their acts and ommissions, as revealed from the foregoing points which have rendered the abovesaid seized consignment liable to confiscation under section 111(d) of the customs act, 1962, m/s. multimodal transport organization, bombay and m/s. marine transport co., pvt. ltd., bombay have thereby rendered themselves liable to penal action under the provisions of section 112 (a) & (b) of the customs act, 1962." 2. the present appeal is filed against the order of penalty of rs. 1000/- imposed on the present appellant under section 117 of the customs act 1962. in these proceedings, as the commissioner came to the findings as follows. "however, in the case of the shippers and cargo consolidators involved viz. marine transport co. as well as multimodal transport, bombay there is clear-cut evidence to show that their documentation was not above board. in neither of their master bill of loading nor house bill of loading received by them, the correct name and address of the consignee of the goods has been indicated. this according to me is in violation of the relevant regulations under customs act, 1962. but for this violation, penal consequences can only be under section 117. but no show cause notice has been issued for imposition of any penalty under section 117. however, it is abundantly clear from the facts and circumstances, of this case that no penalty can be imposed against them under section 112(a) or 112(b) as any omissions or commission making the goods liable to confiscation has not occurred due to any lapse on their part as they are not the importer and no liabilities therefore can be fastened on them in this regard. however, non-mention of the relevant provisions of the act itself may not be a bar against imposition of penalty so long as the facts and evidences cited in the show cause notice indicate to such a contravention and therefore, i feel that maximum penalty which could be imposed under section 117 should be imposed against m/s. marine transport and m/s. multimodal transport, bombay so that they are not tempted to resort to such imperfect documentation or manipulation in the entries of such documents in future." a. no show-cause notice was issued to the appellant proposing the penalty under section 117. the notice was issued proposing penalty only under section 112(a) & (b) of the customs act. 1962. the commissioner has come to the findings that no penalty under section 112 (a) & (b) of the customs act could not be imposed on the present appellant & penalty under 117 was called for; if that be the case, the present proceedings and the notice issued should have been dropped. he could propose a fresh notice if required under section b. in this view of the finding in the show-cause-notice as regard the imposition of penalty, i would consider setting aside the same and allow this appeal.4. in view of my findings the appeal is allowed with consequential relief.

Judgment:
1. The show-cause-notice in this appeal was issued to the appellant herein alleging as follows:- "Further, M/s. Multimodal transport Organisation, Bombay and M/s.

Marine Transport Co. Pvt. Ltd., Bombay being the concerned delivery agents and ship agents respectively, failed to make true and correct declaration as required to be made and in terms of Section 30(2) of the Customs act, 1962. Besides, not declaring the true identity of the declared consignee, it was also revealed that M/s. multimodal Transport Organization continued to represent the interest of suppliers subsequent to the filing of the menifest in respect of the goods, the import of which are governed by certain restrictions.

Hence, by their acts and ommissions, as revealed from the foregoing points which have rendered the abovesaid seized consignment liable to confiscation under Section 111(d) of the Customs Act, 1962, M/s.

Multimodal Transport Organization, Bombay and M/s. Marine Transport Co., Pvt. Ltd., Bombay have thereby rendered themselves liable to penal action under the provisions of Section 112 (a) & (b) of the Customs Act, 1962." 2. The present appeal is filed against the order of penalty of Rs. 1000/- imposed on the present appellant under Section 117 of the Customs Act 1962. In these proceedings, as the Commissioner came to the findings as follows.

"However, in the case of the shippers and cargo consolidators involved viz. Marine Transport Co. as well as multimodal transport, Bombay there is clear-cut evidence to show that their documentation was not above board. In neither of their Master Bill of loading nor house Bill of loading received by them, the correct name and address of the consignee of the goods has been indicated. This according to me is in violation of the relevant regulations under Customs Act, 1962. But for this violation, penal consequences can only be under Section 117. But no show cause notice has been issued for imposition of any penalty under Section 117. However, it is abundantly clear from the facts and circumstances, of this case that no penalty can be imposed against them under Section 112(a) or 112(b) as any omissions or commission making the goods liable to confiscation has not occurred due to any lapse on their part as they are not the importer and no liabilities therefore can be fastened on them in this regard. However, non-mention of the relevant provisions of the act itself may not be a bar against imposition of penalty so long as the facts and evidences cited in the show cause notice indicate to such a contravention and therefore, I feel that maximum penalty which could be imposed under Section 117 should be imposed against M/s. Marine Transport and M/s. Multimodal Transport, Bombay so that they are not tempted to resort to such imperfect documentation or manipulation in the entries of such documents in future." a. No show-cause notice was issued to the appellant proposing the penalty under Section 117. The notice was issued proposing penalty only under Section 112(a) & (b) of the Customs Act. 1962. The Commissioner has come to the findings that no penalty under Section 112 (a) & (b) of the Customs Act could not be imposed on the present appellant & penalty under 117 was called for; If that be the case, the present proceedings and the notice issued should have been dropped. He could propose a fresh notice if required under Section b. In this view of the finding in the show-cause-notice as regard the imposition of penalty, I would consider setting aside the same and allow this appeal.

4. In view of my findings the appeal is allowed with consequential relief.