Commr. of Cus. (Preventive) Vs. over Land Agency - Court Judgment

Excerpt:
- orderbhaskar bhattacharya, j.1. by this appeal under section 130 of the customs act (hereinafter referred to as the act), the commissioner of customs (preventive), west bengal has challenged two orders passed by the learned customs, excise and service tax appellate tribunal, eastern bench, kolkata, the one dated 4th may, 2005 and the other, dated 4th october, 2005 in appeal no. sp-718 of 2004/csm-115 of 2004 and in appeal no. csm-18 of 2005 respectively.2. the facts giving rise to filing of this appeal may be summarised thus :(a) one m/s. souvik exports ltd. ('sel') vide their letters dated 8th january, 2003 and 29th january, 2003 had applied before the commissioner of customs (preventive), west bengal, for permission of loading of indian milling wheat in barges at iwai jetty, haldia and.....

Judgment:
ORDER

Bhaskar Bhattacharya, J.

1. By this appeal under Section 130 of the Customs Act (hereinafter referred to as the Act), the Commissioner of Customs (Preventive), West Bengal has challenged two orders passed by the learned Customs, Excise and Service Tax Appellate Tribunal, Eastern Bench, Kolkata, the one dated 4th May, 2005 and the other, dated 4th October, 2005 in Appeal No. SP-718 of 2004/CSM-115 of 2004 and in Appeal No. CSM-18 of 2005 respectively.

2. The facts giving rise to filing of this appeal may be summarised thus :

(a) One M/s. Souvik Exports Ltd. ('SEL') vide their letters dated 8th January, 2003 and 29th January, 2003 had applied before the Commissioner of Customs (Preventive), West Bengal, for permission of loading of Indian Milling Wheat in barges at IWAI Jetty, Haldia and export those goods there from to Bangladesh. The said application was examined and permission was denied on the ground that the said Jetty was not an approved place for loading of export goods under Section 8 of the Act and SEL was informed accordingly by letter dated 31st January, 2003.

(b) The said SEL thereafter submitted two Bills of Export both dated 7th February, 2003 through their appointed Custom House Agent, viz. M/s. Overland Agency ('OEL') for export of the Indian Milling Wheat to Bangladesh through TT Shed LCS. The Bills of Export were duly appraised and handed over to the said Custom House Agent keeping the original for office records.

(c) It appeared that there was an insertion in the duplicate copies of those Bills of Export by incorporating the handwritten word 'Haldia' in the box meant for mentioning the LCS and those consignments were loaded at IWAI Jetty on barges, namely, M.V. Kader-1 and M.V. Shovonraj. The loading was done at IWAI Jetty, Haldia. Thereafter, the loaded vessels moved to Namkhana LCS where those vessels remained awaiting permission from Central Inland Water Transport Corporation, to leave India. The 'let export order' was given by the Superintendent of Customs, Namkhana and the loaded vessels were allowed to leave for Bangladesh after execution of bonds with securities of Rs. 50,000/- and Rs. 22,000/- by SEL and one M/s. Voyage Maritime Pvt. Ltd. respectively.

(d) The aforesaid irregularities with regard to the loading of the goods for export from Haldia having been detected, the summonses under Section 108 of the Act were issued upon Sri Samir Bhattacharjee, the proprietor of OLA and in his written statement dated 24th September, 2003 he submitted that at the time of tendering of the disputes Bills of Export they mentioned TV Shed, Kolkata as LCS through which the export would take place and that their authorised person had made hand-written addition in the box meant for mentioning the LCS adding 'Haldia' in the duplicate copy of the said two Bills of Export after getting endorsed 'allow order' for loading on 7th February, 2003 from the Superintendent of Customs, TT Shed Land Customs Station, Kolkata, G.R. Road.

(e) Sri Paramangsu Bhowmik, the authorised representative of SEL also made written statement under Section 108 of the Act stating that he was the authorised signatory of SEL and that he in his own handwriting had inserted the word 'Haldia' in the column meant for Land Customs Station in the Bills of Export, after those were appraised by the Superintendent of Customs (Technical), West Bengal, Kolkata, knowing fully well that Haldia is not an authorised LC Station and that the Commissioner of Customs (Preventive), West Bengal did not permit SEL to export the subject consignments through Haldia, IWAI Jetty.

(f) In view of the aforesaid fact, the Commissioner of Customs (Preventive), West Bengal imposed a penalty of Rs. 50,000/- on SEL under Section 114 of the Act and a similar penalty of Rs. 50,000/- on OLA under Section 114 for violation of the provisions of Section 33 of the Act and further a penalty of Rs. 10,000/- was imposed on M/s. Voyage Maritime Pvt. Ltd. under Section 117 of the Act.

(g) Being dissatisfied with the aforesaid order imposing penalty OLA had preferred an appeal before the Tribunal and by order dated 4th May, 2005 the Tribunal set aside the order of imposition of penalty as according to the Tribunal the goods were neither dutiable nor were those prohibited ones and as such, the provisions of Section 114 of the Act were not attracted. It was further held that there was no mem rea on the part of either the exporter or the appellant before the Tribunal by exporting the goods from Haldia. It was further pointed out that the Custom House Agent was not responsible for the alleged interpolation.

(h) In the meantime, a notice under Regulation 23(1) of CHALR, 1984 was issued upon the Custom House Agent to show-cause why their Custom House Agent licence should not be revoked by the competent authority under Regulation 21 of CHALR, 1984 alleging violation of Regulations 14(d) and 14(1) of the CHALR, 1984 for not advising their client to comply with the provisions of the Act, inasmuch as, they did not advise their client, namely, SEL, that the said export goods could not be loaded and exported through IWAI Jetty, Haldia and by not intimating the concerned Assistant Commissioner of Customs about the non-compliance of the provisions of Section 33 of the Act and for not ensuring that all the documents prepared and presented by them or on their behalf were strictly in accordance with the orders relating thereto but on the contrary, they had interpolated the said appraised Bills of Export to facilitate the export of the said goods through an unapproved place in violation of Section 33 of the Act.

(i) In response to the said notice, the Custom House Agent answered the same and their defence may be summed up thus :

(i) SEL, by their letter dated 8th January, 2003 to the Commissioner of Customs, intimated that they received an order fron. Bangladesh for export of Indian Milling Wheat from TT Shed, Haldia to Noapara, Narayanpur Land Customs Station, Bangladesh by barge. For export, they sought permission for submission of the documents at TT Shed for processing of documents and also for export of their consignments to Bangladesh by barges against the Letter of Credit and pro-forma invoice. They also submitted the copies of proforma invoice along with their said letter.

(ii) The Superintendent of Customs (Preventive) by his letter dated 21st January, 2003 requested SEL to inform the place of loading of the goods for export by specifically mentioning the name of the Jetty.

(iii) SEL by their letter dated 21st January, 2003 informed the Superintendent of Customs (Technical), Kolkata that their consignments would be exported by barge from IWA1 Terminal Jetty, Haldia which is outside the Haldia Port. They also intimated that their goods had been lying at Haldia and two of the barges were waiting at Haldia for lifting the goods. They also stated that if they could not export in time, they would be penalised by payment of demurrage charges of the barges and the godown rent. SEL through their letter dated 29th January, 2003 brought to the notice of the Commissioner of Customs (Preventive), their earlier letter and the letter received by them from Superintendent of Customs (Technical). They specifically mentioned that their consignment would be loaded from Haldia 1WAI Terminal Jetty which is outside the Haldia Port and they requested for early permission from the Commissioner for smooth export of the goods. The Superintendent of Customs (Ex.) by his letter dated 29th January, 2003 informed SEL that he was directed to inform that loading permission could not be given outside the specified place under Section 7 of the Act.

(iv) As on earlier occasions such permissions were given by the Commissioner of Customs for loading of the goods from IWAI Jetty, Haldia, SEL by their letter dated 3rd February, 2003 informed the Commissioner of Customs (Preventive), West Bengal that, in anticipation of getting the permission, three railway racks were booked from Faridabad for godown to Haldia and the total quantity of milling wheat was 6904.8 M.T. and those had already reached Haldia and were unloaded in the godown belonging to IWAI Jetty authorities for being loaded in barges. It was further pointed out if they were to carry the entire goods from Haldia to TT Shed, Kolkata for loading purpose that would cause immense hardship and inconvenience to them. They requested the Commissioner of Customs to reconsider the decision and to allow them loading of the goods from IWAI Jetty at Haldia.

(v) M/s. West Bengal Essential Commodities Supply Corporation, a Government of West Bengal Undertaking, vide their letter dated 4th February, 2003 to the Commissioner of Customs (Preventive) intimated that they got an order For export of 70,000 M.T. of milling wheat to Bangladesh through their associate exporter SEL by barge from Haldia IWAI Jetty. They also stated that 7,000 M.T. of wheat had arrived at Haldia from Haryana FCI and barges had also been waiting for lifting of the goods. It was further pointed out that they had to pay huge godown rent and demurrage charges for delay in loading to the barges and in view of such fact they requested the Commissioner to issue necessary permission for loading of stock of wheat into the barges and to issue customs clearance so that they could export the stock immediately.

(vi) SEL expected that necessary permission would be given as done in some recent cases. SEL, accordingly, instructed the Custom House Agent to arrange for export of the goods and OT fees against clearance of shipping Bills amounting to Rs. 5,203/- towards supervision of the loading of export cargo by the Customs Officers at Haldia and for allowing the export of the goods were deposited. The goods were duly exported in the barges of IWAI Jetty, Haldia and were exported under the supervision of the Customs Officers. The Customs Officers allowed the export of the goods on 14th February, 2003 and the goods were exported.

(vii) The goods were, thus, exported pending receipt of the permission from the Commissioner of Customs to which references were made by the exporter, viz. SEL and also by the West Bengal Essential Commodities Supply Corporation Ltd. and having bona fide belief that the formal permission would be accorded by the Commissioner, the goods were exported under the supervision of the Customs and the export was allowed by the proper Customs Officers. The same proceeds were also received through bank by the exporter.

(viii) Regarding alleged interpolation of the word 'Haldia', they stated that when the goods were exported from Haldia, the word 'Haldia' was written by Sri Paramangsu Bhowmik, an employee of SEL and there was no question of interpolation in the Shipping Bill by the agent and Sri Bhowmik in his Statement under Section 108 also admitted that he had written the word 'Haldia' as because the goods were being exported from Haldia and 'Haidia' was written at the instance of the Customs Officers. Therefore, the agents have not violated the provisions of Regulations 14(d) and 14(1) of CHALR, 1984.

(j) The Commissioner of Customs (Preventive), West Bengal however, by order dated 5th January, 2004 found the agent guilty and in exercise of power vested under Regulation 21 of CHALR, 1984 revoked the Custom House Agent Licence granted to Overland Agency with immediate effect and also passed an order of forfeiture of whole security deposit at the time of granting licence.

(k) Being dissatisfied, OLA preferred an appeal before the Tribunal and the Tribunal by order dated 4th October, 2005 set aside the order passed by the Commissioner of Customs holding that there was no mala fide on the part of the Custom House Agent in presenting the said Bill and in view of the fact that the Tribunal by order dated 4th May, 2005 had already set aside the order of imposition of penalty, there was no just reason for cancellation of the licence.

3. Being dissatisfied with the aforesaid two orders dated 4th May, 2005 and 4th October, 2005 passed by the Tribunal, the Commissioner of Customs (Preventive) has come up with the present appeal under Section 130 of the Act.

4. Mr Samaddar, the learned Advocate appearing on behalf of the appellant, has vehemently contended before us that the Custom House Agent had mislead the Customs Officials by presenting the duplicate Bill with the interpolated word 'Haldia' and in view of such fact, the Customs Officials granted permission of export from the said station. Mr Samaddar contends that as a Custom House Agent, it is the duty of the respondent to see that their clients conformed to the provisions of the Customs Act and when Haldia was not an appropriate place for loading of export goods, it was his duty not to place that interpolated Bill before the Customs Officials at Haldia. Mr. Samaddar contends that in this case the Custom House Agent in getting clearance of the goods from Haldia which is not in conformity with the provisions of the Customs Act practised fraud and thus, the Commissioner of Customs (Preventive) in exercise of power under CHALR rightly revoked the licence granted to the respondent. Mr. Samaddar further contends that the Tribunal merely took note of the fact that in the process of such export there was no loss of revenue but according to him that fact is not sufficient in order to absolve the respondent of his liability imposed upon them under Regulations 14(d) and 14(1) of the CHALR, 1984.

5. Mr. Samaddar further contends that in view of the voluntary statement recorded under Section 108 of the Act, the Tribunal could not absolve the Custom House Agent of their responsibility.

6. As regards, order dated 4th May, 2005, Mr. Samaddar contends that the Tribunal erred in law in not considering the real issue before it but was influenced by the fact that there was no loss of revenue; but the question whether the procedure laid down under the Customs Act and the Rules and Regulations and Circulars made thereunder were strictly adhered to by the agent was not considered and once it is established that there had been violation, the Tribunal ought not to have set aside the order of imposition of penalty. He, therefore, prays for setting aside those two orders passed by the Tribunal.

7. Mr. Dutt, the learned Advocate appearing on behalf of the respondent, opposed the aforesaid contentions of Mr. Samaddar and submitted that the Tribunal on consideration of the entire materials on record rightly came to the conclusion that there has been no material irregularity on the part of the agent in producing the Bill with the hand-written portion 'Haldia' and for such act on the part of the Custom House Agent, the nation had not suffered any loss. Mr. Dutt further contends that it is the Customs Officials who themselves cleared the goods knowing fully well that the IWAI Jetty was not a loading place for export and in the past also on several occasions such permissions were granted. Mr Dutt submits that once the Commissioner of Customs issued such permission in violation of the Act, the Custom House Agent now cannot be blamed for not pointing out to the Commissioner of Customs such illegality. Mr. Dutt contends that his client had no mala fide motive in presenting such Bill when competent Customs Officials have already permitted such export and even charges for superintendence of loading had been taken by the Customs Authority. Mr. Dutt submits that Customs Authority itself having accorded permission now cannot put the blame upon the poor Custom House Agent. According to Mr. Dutt, his client merely followed the existing practice which was previously approved by the Customs Officials for exportation of the goods from Haldia. Mr. Dutt lastly contends that even in the statement under Section 108 of the Act his client specifically stated that insertion was not made by him but it was made by the agent of the exporter and that too, on the basis of the previous orders passed by the Customs Officials and in spite of that in the notice under Regulation 21 of the CHALR, 1984 the aforesaid explanation of his client has been deliberately omitted and in the paper books, while inserting statement under Section 108 of the Act given by his client the said portion has not found place. He, therefore, prays for dismissal of the appeal.

8. After hearing the learned Counsel for the parties and after going through the entire materials on record, we find that it would appear from the statement made by Sri Paramangsu Bhowmik, the employee of the exporter that it was he who in his own hand-writing inserted the word 'Haldia'; therefore, we do not find any substance in the contention of Mr. Samaddar that Custom House Agent had really inserted the said word. Moreover, it appears from the record that in spite of the fact that IWAI Jetty is not a place of loading of export goods, under the direct supervision of Customs Officials and that too after accepting the appropriate fees for deputing the Customs Officials to supervise the loading, the Customs Officials cleared the said export. Once such fact is apparent, it necessarily follows that Customs Officials gave permission to export those goods from that place and the Tribunal rightly concluded that a Custom House Agent cannot be blamed for irregularities, if at all, committed by the Customs Officials. In this case, the Commissioner of Customs (Preventive) has not alleged connivance of the exporter or the Custom House Agent with any of the Officials of Customs but at the same time, blamed the Custom House Agent for such irregularity.

9. It is, therefore, apparent that the goods were exported under direct supervision of Customs Officials either under the impression that the Commissioner of Customs was entitled to give such permission or through ignorance, but in view of precedents of this nature, the Custom House Agent did not commit any illegality by presenting the duplicate Bill with insertion of word 'Haldia' by the agent of the exporter.

10. According to Regulation 14(d) of CHALR, 1984, it is the duty of the Custom House Agent to advise his client to comply with the provisions of the Act and in case of non-compliance, it is duty to bring the matter to the notice of the Assistant Commissioner of Customs or Deputy Commissioner of Customs. In the case before use, if the Customs Officers themselves have permitted exportation, there is every scope of bona fide belief of the Custom House Agent that such permission must be in accordance with the provisions of the Act. It is not the duty of a Custom House Agent to point out to the Assistant Commissioner of Customs or the Deputy Commissioner of Customs that their acts are not in conformity with the provisions of the statute or to advise them to act in accordance with law.

11. Thus, there was no violation of Regulation 14(d). Similarly, according to Regulation 14(1), it is the duty of the Customs House Agent to see that all documents prepared or presented by him or on his behalf are strictly in accordance with orders relating thereto. In the case before us, the Customs Office having accepted the money deposited for supervising the export goods from Haldia, the document presented by him showing that the goods will be exported from Haldia cannot be said to be not in conformity with the orders relating to the said export. Thus, there was even no violation of Regulation 14(1).

12. We, thus, find that the order of the Commissioner of Customs (Preventive), West Bengal revoking the licence of the Custom House Agent was on the face of it illegal as the agent did not violate either the Regulation 14(1) or the Regulation 14(d) and the Commissioner of Customs (Preventive) erroneously revoked the licence as if there had been violation of those provisions and the Tribunal rightly set aside the order.

13. As regards the earlier order dated 4th May, 2005, we find that for the reason explained above, there was no just ground for imposition of penalty as there was no violation of the provisions contained in Sections either 113(f) or 113(g) of the Act or Section 33 or Section 34 of the Act. Even if there is violation of Section 33 under the active supervision of the Custom Officials after accepting the required fees for supervision of loading in terms of Section 34, in the absence of allegation of collusion or connivance with the Customs Officials, the exporter or the Customs House Agent cannot be held guilty or be penalised.

14. The Tribunal by a detailed judgment pointed out that the goods were not prohibited items nor has there been any loss of revenue and as such, the imposition of penalty was totally unjust when no allegation of connivance of the respondent with the Officials of the Customs has been alleged. The position would have been different if the Commissioner of Customs alleged connivance of the respondent with the Officers of the Customs who passed the clearance and permitted deportation.

15. We, thus, find no reason to interfere with the order passed by the Tribunal. The appeal is devoid of any substance and is accordingly dismissed. In the facts and circumstances, there will be, however, no order as to costs.

Per: Pravendu Narayan Sinha, J..

16. I agree.