1. Appeal under Section 129 of the Customs Act, 1962, praying that in the circumstances stated therein, the Tribunal will be pleased to order refund of penalty of Rs. 23,466.00 levied under Section 116 of the Customs Act, 1962. V 2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri V. Aravamudhan, Advocate for the appellants and upon hearing the arguments of Shri D. Ramachandran, Departmental Representative for the respondent, the Tribunal makes the following order.
3. This petition was filed before the Government of India against the Order-in-appeal No. C 49/382/1979, dated 5-6-80 of the Appellate Collector of Customs, Madras against the Order No. IM 204/79 MCD, dated 24-7-79 of the Deputy Collector of Customs, Madras imposing a penalty of Rs. 23,466/- on shortlanded goods under Section 116 of the Customs Act, 1962. By virtue of Section 131B(2) of the Customs Act, 1962, this petition has been transferred to this Tribunal to be heard as an appeal.
4. In a consignment of special Glazed stamping foil imported ex.s.s.
JALAZAD (I.M. 204/79), shortage was noted at the time of survey held by the steamer agents. On the basis of this survey a penalty of Rs. 23,466/-was levied under Section 116 of the Customs Act, 1962 by the Deputy Collector. An appeal against this order was rejected by the Appellate Collector on the ground that the shortages were not satisfactorily explained and that the shortage was curing the survey by the steamer agents. The present appeal is against this order.
5. The appellants' contention is that there was a delay of 35 days on the part of the consignees in arranging for a survey ; that the shortage might have occurred after discharge of the goods and whilst the cargo was in the custody of the Port Trust ; that the cargo was annotated as "cover torn" in the tally sheet and, therefore, there was no evidence that the contents were short.
6. During the hearing, the learned counsel for the appellants argued that the appellants are not liable to action under Section 116 of the Customs Act, 1962 as the carriers are not responsible for shortages in the contents of any package. Reliance is being placed on the Carriage of Goods by Sea Act, 1925, wherein some provisions are said to absolve a ship owner of his responsibilities in respect of the carriage.
7. A general reading of the Carriage of Goods by Sea Act, 1925 and the Hague Rules which form a part thereof shows that it is meant to apply to conditions of carriage of foods by sea in certain specified circumstances and is meant to determine the relationship between the shipper and the carrier, and delineate the rights and liabilities of the shipper or the carrier vis-a-vis the other ; it does not govern or effect the statutory rights of a third party like the Government.
Section 2 states that the rules set out in the Schedule (the rules forming Articles of the Hague Convention) have effect in relation to goods sent from any port in India to any other port whether in India or outside India. There is no reference to goods brought into India under Bills of Lading issued outside India. Section 4 makes the position clear when it states that "every bill of lading issued in India...shall contain an express statement that it is to have effect subject to the provisions of the said rules as applied by this Act". A reading of the rules themselves show that all the time they have the carrier and the shipper in mind.
8. Article III(6) of the Rules refers to the carrier being discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. Such a suit would normally be one brought by the shipper or consignor against the carrier.
9. Article VI provides that the carrier and a shipper are at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier "...so far as this stipulation is not contrary to public policy...." 10. Article IV(5) specifies that neither the carrier nor the shipper shall in any event be or become liable for any loss or damage to or in connection with goods in amount exceeding 100 per package or unit...
unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.
11. Section 116 of the Customs Act, 1962 imposes a clear liability on the person in-charge of a conveyance and through him the steamer agents. The Customs Act, 1962 is later enactment to the Carriage of Goods by Sea Act, 1925 ; it must be presumed that while enacting the Customs Act, the legislature was aware of the provisions of the former Act. Further, under Section 30 of the Customs Act, the person in-charge of a conveyance carrying imported goods shall...deliver to the proper officer an import manifest in the prescribed form. The prescribed form provides for declaring the number of packages, marks and numbers, weight etc., of every consignments covered by each one of the bills of lading. Having declared these particulars to the proper officer in terms of Sec. 30 of the Customs Act, it is not open to the person in-charge of the conveyance (or his agent) to plead that he does not attract the liability under Section 116, which flows directly from the filing of the manifest under Section 30. The scheme of accountal for imported goods as set out in the Customs Act would be defeated if the person in-charge of a conveyance is allowed to plead that because of his contractual relationship with other parties he is not bound to account fully for the goods brought by him in the conveyance.
12. Provision for Section 116 of the Customs Act, 1962 came to be considered by the High Court of Kerala in the case of Sorabji and Company Pvt. Ltd. v. the Collector of Customs and Central Excise and Ors. (O.P. No 1210 of 1977) reported in 1980 E.L.T. 57. In that case the High Court has observed that- "Those considerations may not be applicable to cases governed by Section 116 of the Customs Act, 1962, which imposes a strict liability upon the person in-charge of a vessel to pay penalty unless he is able to satisfactorily account for the shortlanded cargo. The liability arises when there is failure on his part to account for the shortage to the satisfaction of the Customs authority. The satisfaction of the officer is an objective satisfaction for he acts in a quasi-judicial capacity when he imposes the penalty. If he unreasonably or irrationally or capriciously fails to satisfy himself, notwithstanding reasonable explanations rendered by the carrier, the penalty under the Section cannot be validly imposed. On the other hand, if the order imposing penalty is reasonably based on a rational consideration of the relevant circumstances, this Court will not interfere with it in proceedings under Art. 226 of the Constitution...." 13. We find that the liability of the Master of the vessel, and through him that of his agent, is not altered in any way because of the provisions of the Carriage of Goods by Sea Act, 1925 (including Hague Rules).
14. No evidence has been adduced in support of the plea that shortage occurred after discharge of the goods from the vessel. Delay in holding the survey by the steamer agents (i.e., the appellants themselves) will not absolve them of their responsibility to satisfactorily account for the goods. In the result the appeal fails and is dismissed.