AISWARYA MARITIME SERVICES Vs. COMMISSIONER OF CUSTOMS, COCHIN

JUDGEMENT

(1.) ALL these three appeals arise from a common Order -in -Original No. SIB/01/2003 -Cus. dated 9 -11 -2004. Among others, the appellants have been imposed a penalty of Rs. 10,000/ - each in terms of Section 117 of the Customs Act, 1962. All these three appellants were Steamer Agents. The appellants were charged that they lent their containers to the Shipper/Exporter for transportation of misdeclared cargo and carried the stuffed and sealed containers to the port of destination/Dubai. Therefore they had violated the provisions of Customs Act. The appellants contention is that they were only steamer agents and the appellant supplied only empty containers to the Shipper/Exporter. They had no knowledge of the cargo what was stuffed and sealed inside the containers. They were in no way connected with the stuffing of the cargo into the containers which were done at the Customs/Central Excise notified/bonded warehouse/stuffing stations by the shipper/exporter in the presence of Customs/Central Excise officers. They have taken a detailed defense which has been recorded in Paragraphs 43 to 48 of the impugned order, but the Commissioner has not given a detailed finding except presumptive finding that - thereby appear to have not taken due care and ensure proper utilization of their marine freight containers for transportation of bona fide cargo, thus showing their complicity resulting in the above mentioned violations, thereby rendering themselves liable for penalty under Section 117 of the Customs Act, 1962. The learned Counsel points out that the Commissioner has given only presumptive finding without any evidence on record. He submits that the appellants are only steamer agents and they are in no way connected with the stuffing of the cargo into the containers. He relies on the Tribunal judgment rendered in the case of A.P. Muller (Maersk Line) v. Collector of Customs (Prev.), Bombay [1994 (69) E.L.T. 425 (Tribunal)] wherein in an identical situation, the penalty has been set aside. In that case it was noted that the containers belongs to the appellant who had supplied the same to the shippers to be taken to their premises for stuffing the same with the consignment, and that the same was brought back to the docks, duly stuffed, locked and sealed in the presence of Customs officers. Therefore the appellants cannot be held responsible for any negligence and cannot be imposed any penalty.

(2.) THE learned DR reiterates the findings of the Commissioner.

(3.) ON a careful consideration of the submissions made by both the sides, we notice that the finding given by the Commissioner is not a definitive nature. He has given only a presumptive nature - thereby appear to have not taken due care and ensure proper utilization of their marine freight containers for transportation of bona fide cargo, .. It was also pointed out by the learned Counsel that the officers of the Department has given a certificate which clearly exonerates the appellants. This certificate is on record. We have also taken into consideration the cited judgment wherein in similar circumstances, the appellants who had supplied the container to the Shipper/Exporter has been exonerated. The Commissioner has not applied his mind and has not given any definitive finding. The impugned order is not sustainable in law and therefore the same is set aside by allowing the appeals with consequential relief. The appellants are entitled for refund of the penalty which has been deposited by them in the matter.