BRITISH AIRWAYS PLC Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellants are the aircraft carrier engaged in the business of international air transport of passengers and cargo across various countries. They are also operating in India under bilateral agreements executed between the countries of their origin and India. Claiming that as they are not the 'persons-in-charge' of the aircraft, no liability of shortages of off-loading the complete quantity of goods can be imposed upon them in terms of Section 116 of the Customs Act, 1962 (hereinafter referred to as "the Act"). It is contended that once the officer-in-charge of the aircraft is given a certificate under Clause (e) of sub-section (2) of Section 42 of the Act, the authorities cannot reopen the issue. According to the appellants no penalty could be imposed upon either the owner of the aircraft or the carrier as the owner and the carrier cannot be deemed to be an agent of the person-in-charge of the conveyance under Section 148 of the Act.

(2.) It appears that the aircrafts of the appellants unloaded their cargo at the Indira Gandhi International Airport, Delhi. They were issued show cause notices alleging that some of the packages airlifted for India were found short and required from them as to why penalty as detailed in the show cause notices be not imposed upon them. The notices were appropriately replied disputing the facts stated therein and pleading that show cause notices had been issued to wrong persons because the appellants were not the 'person- in-charge' of the conveyance, liable to be dealt under Section 116 of the Act. It was further contended that the deficient quantities noticed in the cargo at the time of preparation of the segregation report were infact either pilferaged at Delhi Airport after the cargo had been unloaded from the conveyance and before the preparation of the segregation report under Section 45 of the Act or were not loaded on the conveyance at all. The Assistant Commissioner of Customs was not satisfied with the reply submitted to the show cause notice. The said appropriate authority imposed the penalty on the appellant against which they filed appeals before the Commissioner of Customs. On dismissal of their appeals by the Commissioner of Customs (Appeals), they preferred further statutory appeals before the joint Secretary (Revenue) which were also dismissed. Dissatisfied by the orders passed by the authorities under the Act, the appellants filed writ petitions in the High Court of Delhi which were also dismissed vide the order impugned in these appeals.

(3.) Learned counsel appearing for the appellants has vehemently argued that as his clients were not the "person-in-charge" within the meaning of Section 2(31) of the Act and the person-in-charge had obtained an order from the officer-in-charge in terms of Clause (e) of sub-section (2) of Section 42 of the Act, no liability could be fastened upon the appellants. Learned Attorney General for India who appeared for the respondents drew our attention to Section 148 of the Act and submitted that though strictly and technically speaking the appellants were not the persons-in-charge, yet they were 'such persons' as contemplated under sub-section (2) of Section 148 of the Act, liable to penalty and pay for the price for the shortages in unloading of the cargo.