P.K. Desai, Member (J) -
(1.) THE Departmental authorities have filed the present application vide Section 130(1) of the Customs Act, 1962, seeking reference to the High Court on the questions, formulated by them as the questions of law, arising out of our Order No. 25/90 WRB, dated 10 -01 -1990, in Appeal No. C/328/89 Bom arising out of Order -in -Original No. 9/89 -Addl. Collr., dated 30 -3 -1989 of the Additional Collector of Customs and Central Excise, Panaji, Goa.
(2.) THERE is a delay of 27 days in filing the Reference Application. Due cause for delay is shown and we are satisfied that the delay is not on account of any negligence. Delay is accordingly condoned.
(3.) TWO trawlers registered at Panama and chartered by M/s. BRS Marine Ltd., New Delhi, who held the permit to fish, issued by the Ministry of Agriculture, vide permit dated 18 -12 -1985, had reached the Port of Marmagoa, on 4 -3 -1988, and their declared base port was Goa. For their entry Inwards etc. papers were filed by M/s. Chowgule Brothers (the Respondents in the application). The vessels were then given Port Clearance for sailing in Bellast for High Seas on 8 -3 -1988. After their mandatory call at Bombay, the trawlers again called at Marmagoa on 6 -6 -1988 and were granted Entry Inwards on the basis of authorisation given in favour of the Respondents by the masters of the vessels and the vessels were also given port clearance for sailing to the High Seas on 10 -6 -1988. The vessels however did not call back at the Base Port, and were reported to have gone away with the fishing catch, without payment of cess or without observing the customs formalities subsequently however the charterers filed shipping bill as also the log book and also paid the cess payable. In the Shipping Bill that the charterers filed, they mentioned the Respondents as the Steamer Agents. For non compliance of the statutory provisions of the Customs Act, proceedings were initiated against the charterers and masters of the vessels, as also against the Respondents, as their Steamer Agents, for imposition of penalty vide Sections 114 and 117 of the Customs Act, 1962. The plea of the Respondents that they had no control over the vessels, and could not have brought the vessel back for mandatory call, was accepted by the adjudicating authority and no personal penalty was imposed on them. The said Authority, however, imposed personal penalties of Rs. 3.00 lacs on each of the two masters, and ordered recovery thereof from the Respondents vide Section 148 of the Customs Act.
The Respondents thereupon approached this Tribunal, by way of appeal, and this Bench, vide its order as aforementioned, observed that even the adjudicating authority had not held the Respondents here, to have themselves contravened the provisions and did not impose any personal penalty on them and held that, there was no undertaking obtained by the Customs authorities from these Respondents, holding them answerable for any penalty that could be imposed on the masters and that the undertaking filed vide Section 42(2)(e) of the Act, was only in relation to the provisions of Section 116 of the Act, and as such, the Respondents were not the agents for any purpose other than filing Entry Inward/Outward papers and obtaining port clearances and once the port clearance was issued, without taking any undertaking, from the Steamer Agents, liability of non action in that regards by the masters of the vessels, could not be passed over to the Steamer Agents, who had not specifically undertaken this function, and as such, provisions of Section 148 of the Customs Act could not stand attracted, and no recovery could be made from the Respondents.;