- (1.) The prayer in the writ petition is to issue a Writ of Certiorari to call for the records relating to the impugned Order No.401/97, dated 22.4.1997 passed by the third respondent (confirming the Order No.C49/12/96, dated 11.10.1996 passed by the second respondent and Order No.28/96 dated 10.5.96 passed by the first respondent) and quash the same.
(2.) The petitioner/company is carrying on business as steamer agents for several foreign and Indian ship owners. In the early 1980s, carriage by containers came into existence. Container, normally, is entrusted at the Port of shipment to the vessel to be discharged at the Port of discharge. In course of time, this practice underwent a change. The containers were entrusted to a carrier known as "Main Line Operator" who would carry the same from the port of shipment to intermediary ports from where that would be carried by another vessel known as "Feeder Line Operator" to the final port of discharge. The "Main Line Operator" who carries the containers intended for different destinations bring the cargo to the feeder point like Singapore or Columbo from where the "Feeder Line Operator" carries the containers to different ports of discharge. Only the container number and the port call location are communicated to the "Feeder Line Operator"; the nature of cargo imported or the name of the consignee is not disclosed to it. Such a manifest given by the "Main Line Operator" is accepted by the Customs Department. Section 30 of the Customs Act (hereinafter referred to as 'the Act) contemplates filing of Import Manifest (cargo declaration). Section 116 of the Act contemplates levy of penalty on the carrier for non-account of manifested cargo (short landed cargo). The petitioner acted as Agents for a "Feeder Line Operator" (Pacific International Pvt. Ltd., Singapore) in respect of the vessl m.v. Kota Jade Voy 2, which was a feeder vessel operating between Madras/Singapore. Yang Ming Marine Container Lines are the "Main Line Operator" and the fifth respondent is its local steamer agent. An agreement was entered into between the "Main Line Operator" and the "Feeder Line Operator" at Singapore. Two containers, namely, YMLU 2258301 and YMLU 2358342, carried by the "Main Line Operator" from Korea to Madras, were entrusted to the "Feeder Line Operator" at Singapore. They were loaded in the vessel Kota Jade Voy 2, which arrived at Madras Port on 23.2.1994. Before the arrival of the vessel, the fifth respondent filed the manifest for these two containers to the Customs Department and it was registered by the Madras Port Trust. When the containers were to be discharged by the petitioner, the fifth respondent advised the petitioner to re-ship the containers back to Singapore. The petitioner immediately requested the fifth respondent to obtain necessary permission from the Customs Department and comply with the requisite formalities since the containers were entered on the petitioner's account. Since the manifest had been signed by the fifth respondent, any amendment ought to have been carried on by them with the Customs Department. While so, the Assistant Commissioner of Customs issued a show cause notice, dated 1.12.1994 u/s.116 of the Act for imposition of penalty in respect of the two containers which were not discharged at Madras Port. To the said notice, a reply, dt.12.12.1994 was sent by the petitioner. The first respondent passed an Order dated 10.5.1996 and imposed a penalty of Rs.33,64,762/- on the petitioner on the ground that the "Feeder Line Operator" alone is liable for non-discharge and not the "Main Line Operator". Against that, the petitioner preferred an appeal to the second respondent. By an order dated 11.10.1996, the appeal was allowed and the matter was remanded to the lower authority for reconsideration. However, the second respondent has held that the "Feeder Line Operator" alone is liable to pay the penalty. Therefore, the petitioner filed a revision application before the third respondent. The third respondent by an Order 22.4.1997 dismissed the revision application and held that "Feeder Line Operator" is liable as per the provisions of the Customs Act. The present writ petition has been filed challenging the order of the third respondent, dated 22.4.1997.
(3.) A counter has been filed by the Customs Department in which it is stated that the petitioner, Agents of the feeder service vessel, has accepted that the two containers were discharged at Singapore to be carried and delivered at Madras Port by a feeder vessel. As per Section 30 of the Act, feeder vessel operator has to file the manifest/documents. As per Section 116 of the Act, the penalty is payable by the "Feeder Line Operator" (not by the "Main Line Operator") since neither the petitioner nor the Main Line Operator had obtained necessary permission from the Customs Authorities for not landing the containers at the Port of Madras, that is they did not obtain permission for reshipment to Singapore. Under Section 30 of the Act, it is the responsibility of the petitioner to file necessary documents before taking the containers to Singapore. Under Section 116 of the Customs Act, if any goods loaded in a container for importation into India are not unloaded at the place of destination, and if the failure to unload is not satisfactorily accounted for, the person-in-charge of the containers is liable to pay the penalty.;