CHIDZHAVADZHE Vs. COMMISSIONER OF CUSTOMS, COCHIN

JUDGEMENT

(1.) THIS appeal arises from the Order -in -Original No. 01/2006 dated 21 -3 -2006, passed by the Commissioner of Customs (Prev.), Cochin, imposing penalty of Rs. 1,00,000/ - for having brought the Barge AL -JABER 6, within the Indian Customs waters. The appellants were charged that the barge was brought into the Indian Customs waters without declaring it in the Import Manifest. The same was confiscated and released. The Master of the vessel, Shri Chidzhavadze, a Georgian, in his statement to the Superintendent of Customs (Preventive) admitted the mistake and stated that the tug took over the Barge AL -JABER 30 from Sandakan, Malaysia on 13 -4 -2004 to hand it over to its owner at Abudhabi and they had entered Cochin Port for bunkering. He further stated that it was his first arrival to India and he was not aware of the rules of the country and prayed for taking a lenient view. Shri George Mathew, Managing Partner of M/s. Ancheril Agencies, Steamer Agents for the tug AL -JABER 6 in his statement also admitted that they had committed a mistake by not declaring the Barge in the Manifest of the vessel AL -JABER 6 and requested to condone the mistake. They submitted that there was no intention to enter into Indian Customs waters and by mistake the barge was brought without declaring it in the Import Manifest. There was no intention to evade any law. The Master of the tug did not understand the English language. It was bona fide mistake and no serious violation has been committed for imposition of penalty of Rs. 1,00,000/ -.

(2.) THE matter had been adjudicated initially and the Tribunal had remanded for de novo consideration and to permit the appellants to cross examine the witnesses. The Department produced only one witness, Shri Jolly K. J. and other witnesses could not be produced. Two Customs Officers were also cross examined. After a detailed examination of the matter, the Commissioner has noted the admissions made by the Master of the vessel with regard to the entry of Barge into the Indian Customs waters. The defence taken by the appellants is that the Barge had entered in the Indian Customs waters due to bona fide mistake and also it was done on the instruction of Port Control Officials which was not accepted by the adjudicating authority. The Commissioner imposed a penalty of Rs. 1,00,000/ - on the Master of the vessel.

(3.) THE learned Counsel submits that the Commissioner has dropped the proceedings for confiscating the barge and redemption fine has not been imposed. Therefore the question of imposing penalty does not arise in the matter. He further submits that for the venial breach, no penalty should be imposed as held by the High Court of Madras in the case of Haniff Shabbir Brothers v. Collector reported in 1997 (96) E.L.T. 27 (Mad.). He also relies on the ruling rendered by the Tribunal in the case of Hari and Co. v. Commissioner of Customs, Trichy [2007 (213) E.L.T. 536 (Tri. -Chennai)] wherein the penalty imposed on Steamer Agent for non -declaration of goods due to negligence was set aside as there was no intention on the part of the appellant to remove the goods/cargo to Indian Port for sale in the local market. The learned Counsel also relies on the ruling of the Apex Court in the case of Hindustan Steel Ltd. v. State of Orissa reported in 1978 (2) E.L.T. J159 (S.C.)] wherein it was held that when there was only a technical or venial breach of law, penalty is not imposable.