- (1.) This Writ Petition is filed to issue a Writ of Certiorari, calling for the records of the 1st Respondent in Order No. 614/2006, dated 31.10.2006 and to quash the same. The case of the Petitioner is as follows:- a. The Petitioner Company is a registered multimodal transport operator under the Multimodal Transportation of Goods Act, 1993. The agent of the Petitioner Company M/s. Coklen Sparrow Shipping (M) Sdn Bhci, Malaysia allotted one empty 20 feet container to the freight forwarder M/s. Straits Express (M) Sdn Bhd, Malaysia, on FCL/FCL basis, for loading of goods. The Petitioner Company, in the capacity of a carrier under the said Act, received a container bearing No. CRXU 2116467, at the container yard (CY) in Port Klang, Malaysia from the said freight forwarder. The said container was consigned to M/s. Semex impex and M/s. Uni Phann (1), Chennai under the two Bills of Lading Nos. GS/CHE/03/074 and GS/CHE/03/074A respectively. The said container was stuffed and sealed with a container seal bearing No. 661273 at the shipper's premises and noted in the Bills of Lading and the said container was loaded on to ocean going vessel m.v. Tiger Bridge Voyage-059 for carriage to Chennai Port. The Petitioner Company, in the capacity of a carrier under the said Act, filed import manifest as per Section 30 of the Customs Act, 1962 for the goods arrived per Tiger Bridge V.059 from Port Klang, under B.L. No. GS/CHE/03/074, dated 27.2.2003. The container was destuffed by Chennai Container Terminal Limited and on tally, it was found that 436 cartons were short landed, out of the manifested quantity of 872 cartons consigned to M/s. Semex Impex, Chennai. The 3rd Respondent, based on the short landing report issued by the Chennai Container Terminal Limited, Chennai, issued an order bearing No. 3886/2005 MCD dated 19.5.2005, imposing a penalty of Rs. 3,37,777/- under Section 116 of the Customs Act, 1962. The Petitioner Company preferred an appeal before the 2nd Respondent, who confirmed the order of the 3rd Respondent and set aside the appeal. As against the same, the Petitioner filed a revision before the 1st Respondent, who by the impugned order, confirmed the order of the 2nd Respondent. b. The Hague Vis by Rules, which are followed universally for carriage of goods by sea, provides a carrier to enter into any agreement, stipulation, condition, reservation or exemption, with respect to loss or damage of goods. The relevant clause of the VII of the said Rules viz. "Shippers Load and Count Container Sealed by Shipper" and "Said to Contain", incorporated in the Bill of Lading protects the Petitioner from liability with respect to disputes arising out of quantity loaded and quantity discharged. c. The carriers or carrier agents on request from the freight forwarders allot containers for loading of cargo at shippers' premises or forwarders premises. On allotment, the containers are moved to desired locations for stuffing of cargo and sealing. Once the cargo is stuffed into the container and sealed, they are moved to the container yard of the Port and handed over to the Carrier or his agent for putting on board the vessel, after necessary customs formalities are completed. The freight forwarder M/s. Straits express (M) Sdn. Bhd, booked on 20 feet container on FCL/FCL (Full Container Load) basis with M/s. Golden Sparrow Shipping (M) Sdn. Bhd. who is an agent of the Petitioner Company in Malaysia to load two consignments destined to Chennai. This fact is affirmed by M/s. Straits Express (M) Sdn. Bhd. in their letter dated 21.6.2005. The Respondents 1 and 2 has not given any weightage to the clarification given by M/s. Straits Express (M) Sdn. Bhd. in letter dated 21.6.2005 that one 20 feet container on FCL/FCL basis was booked with M/s. Golden Sparrow Shipping (M) Sdn. Bhd. who is an agent of the Petitioner Company in Malaysia. Carrier will neither measure the cargo nor count the packages, when the clause "Shippers Load and Count Container Sealed by shipper" is incorporated in the Bill of Lading. The shipper measures the cargo and forwards the details to the freight forwarder who then furnishes the details to the carrier or his agent. The carrier, based on the details furnished by the forwarders, incorporates the weight, measurement of cargo, description of goods, quantity and freight details in the Bill of Lading. The Respondents 1 and 2 erred in understanding the terms CY (Container Yard) Port Klang and CY (Container Yard) Chennai, which broadly means that the whole container received by the carrier at Port Klang is packed at the shipper's or the forwarder's premises and the delivery of container to the consignee at the container yard of the carrier. The definition clearly states that stuffing of cargo takes place at the shippers place and handed over at the CY (Container Yard) of the carrier for loading. On receipt of the sealed container by the Petitioner Company at CY Port Klang, the subject container is loaded on board the vessel for carriage to Chennai. By the impugned order, the 1st Respondent has upheld the order the 2nd Respondent without addressing the question of law raised in the revision. Hence, this Writ Petition has been filed.
(2.) The Respondents filed a counter affidavit, contending as follows:- a. The container loaded in the vessel tiger bridge V059 at Port Klang, Malaysia is only the "LCL" container and not an "FCL" container, which is evident from the narration set out in the order of the Commissioner (A) in C.Cus. 911/05 dated 23.12.2005 and in the impugned order, which is not disputed by the Petitioner in the affidavit, without any cross objections and counter arguments. b. There are two bills of lading viz GS/CHE/03/074 and GS/CHE/03/074A for the container CRXU 2116467, which is not the feature of an FCL container. There are two parties/Importers in India, for these two Bills of Lading viz. M/s. Semex Impex, Chennai-83 and M/s. Unipham (India) Chennai. Therefore, at the port of loading (itself), the said container had attained the characteristics of LCL container. Hence, there is no veracity in the statement of the Petitioner that the above container is an FCL container, at the point of loading at load port and it was not an FCL, but it was only LCL container. c. The factual position in the present case is that the Petitioner/their agent has chosen to declare in the bills of lading as "shipper's load and count containers sealed by shipper' to absolve themselves of their responsibility on the container accepted by them. The volume of the cargo, mentioned as 21.00M3, which refers to the complete space occupied for the cargo mentioned in the Bill of lading, do not tally for both the bills of lading referred to above, which together works out to 25.74 cbm. Therefore, CBM declared viz. 21.00m3 pertains to a part of the consignment in the container and not the other part also. The container destuffing tally sheet No. 5351 of the Chennai Container Terminal Limited bears clear evidence for the two consignees, which is detailed below, to evidence that the container is a LCL and not FCL:- The bill of lading reference numbers are same with distinguishing letter 'A', which appeared to be a deliberate attempt to mislead customs that it is an FCL container. The fact that there is no mention as 'FCL' in the bills of lading and the declaration as 'shipper load' and also 'c/y' (container yard) (i.e. at the shippers site) are all confusing declarations with the sole object of shifting the responsibility on the shipper and/or the freight forwarder. The term 'cy' means containers packed by shipper at place other than carriers: (cy) and accepted by consignee at carrier's cy, and unpacked by consignee off carrier's premises, all at the risk and expense of cargo as per the trade technologies, reveals, that purposely the provisions of transport agreements with the freight forwarders (M/s. Straits Express (M) Sdn. Bhd.) are not to bring to the notice of customs, so that they can recover the losses/damages from the freight forwarders, while at the same time, to escape from the clutches of customs. d. The Rules quoted by the Petitioner, viz. The Hague Visby Rules, have no binding effect on customs, as the agreements are entered into by the carrier with others and not customs. The Petitioner, who had filed the manifest under Section 30 of the Customs Act, 1962 is responsible for its accountability to the satisfaction of the customs. Thus, the declaration/exhibiting details in their documents (bills of lading and their correspondence) reveals several infirmities/discrepancies which are detailed above and confirmed by the Government. e. It is a settled law that the liability under Section 116 of the Customs Act, 1962 is on the person who tiles the manifest. In this connection, this Court has already held in WP. No. 15601/1997 and W.P. No. 374 of 1998 thai with regard to liability of "Main line Operator" and "Feeder Line Operator" for FCL container, the liability was fixed on the person who filed the manifest and that liability to penalty under Section 116 of the Customs Act, 1962, has to be fixed on the person, who filed the manifest and the customs should not be deprived of the penalty amount due to customs. The Hague Visby Rules itself is the evidence tor sorting out the liability created on the carrier under Section 116 of the Customs Act, 1962 with the other persons with whom they entered into any agreement, in this case the freight forwarders, in the light of the above said 'acts and circumstances, the Petitioner shall be responsible tor the shortage of goods under Section 116 of the Customs Act, 1962 and therefore, they have to discharge their liabilities to the penalty imposed on them under Section 116 of Customs Act, 1962 and hence, the Writ petition is liable to be dismissed.
(3.) The learned counsel for the Petitioner contended that the relevant clause of Article VIII of the Hague Visby Rules, viz. "Shippers Load and Count Container Sealed by Shipper" and "Said to Contain" incorporated in the Bill of Lading, provides protection to the Petitioner from liability with respect to disputes arising out of quantity loaded and the quantity discharged and that the Carrier will neither measure the cargo nor count the packages, when the said clause is incorporated in the Bill of Lading and that, the liability of carrier cannot be decided on the basis of status of the container, namely, "Full Container Load" (FCL) or "Less Container Load" (LCL) The learned counsel further submitted that the Respondents erred in understanding the terms CY (Container Yard) Port Klang and CY (Container Yard) Chennai and that the seal of the container crucial in deciding the liability of a carrier for non accountal of goods under Section 116 of the Customs Act, 1962 and that the container has been sealed at the shipper premises and handed over to the Petitioner Company at the container yard in Port Klang, and therefore, the Petitioner Company cannot be held responsible it any shortage or non-accountal of goods and hence, prayed for quashing of the impugned order.;