ORDER
T. Anjaneyulu, Member (J)
Page 0019
1. Heard both sides.
2. This is an appeal against an Order-in-Original dated 18.02.2000 passed by the Commissioner of Customs (Import), Mumbai, wherein penalty amount of Rs. 1,80,000/- (Rupees One Lakh Eighty Thousand only) was imposed on the appellants, who is a Steamer Agent under Section 112(a) of the Customs Act, 1962.
3. The facts involved in this appeal may be summed up as follows:
M/s. Sai Freight Pvt. Ltd., the Steamer Agent, have applied for an additional entry in the I.G.M. No. 4033/15.12.99 for 2000 bags of pulses for S.S. M.V. Eco Elham vide of Bill of Lading No. 15/YGN-Mum. The value of the goods has not been manifested in the IGM No. 4033 as required under Section 32 of the Customs Act, 1962. Further, the goods were off-loaded without taking prior permission from the proper officer. The Steamer Agent, vide letter dated 20.12.99, has requested for additional entry in the said consignment. Their plea was that they received the documents by e-mail instead of listed by courier. While unloading the e-mail messages, copy of BL No. 15/YGN-Mum for 2000 boxes, net weight 97.384 MTs pulses, gross weight 98.700 MTs, was not unloaded. Therefore, the same got missed for inclusion. Further, Page 0020 they submitted that it is simple human error and there was no deliberate intention on their part.
4. On considering the matter, it is found that there is a clear violation of Section 111(f) and 111(g) of the Customs Act, 1962. As the appellants herein are not the owners of the goods, the same were not confiscated; however, penalty of Rs. 1,80,000/- (Rupees One Lakh Eighty Thousand only) was imposed basing on the admitted omission of the appellants.
5. The ld. counsel for the appellants submits that usually such omission do occur in not filing the manifest showing proper description of the goods and it is not their mala fide intention to cause any loss in the Customs duty since the goods in question (pulses) are freely importable. He also further relied upon the following decisions:
(a) Oceanic Shipping Agency Pvt. Ltd. v. Commissioner of Customs, Raigad
(b) Samrat Shipping Co. Pvt. Ltd. v. Commissioner of Customs
In both the above decisions, it is held that where the goods are freely importable without payment of duty, and though the goods were un-manifested, no adverse inference can be drawn to cause loss in the customs duty and in such circumstances, the matter do not call for imposition of penalty.
6. In the instant case, the appellants have already deposited the penalty amount and contest this appeal on merits.
7. The ld. DR submits that such huge quantity of goods cannot be expected to be un-manifested and the imposition of the penalty is proper as the value of the goods is about Rs. 18,00,000/- (Rupees Eighty Lakhs only).
8. After going through the rival contention and considering the aforesaid case laws, I am of the view that though the imposition of the penalty is proper and valid, but the same is on high side. In such circumstances, I am of the view that imposition of Rs. 1,00,000/- (Rupees One Lakh only) towards penalty would meet the ends of justice and I confirm the same. The appellants are entitled for refund of Rs. 80,000/- (Rupees Eighty Thousand only). The appeal is partly allowed.
(Pronounced in Court)