ANIL CHOUDHARY, J. -
(1.)The appellant M/s. Orient Ship Agency Pvt. Ltd. is a shipping company acting as a local agent in Mumbai for the carrier The National Shipping Company' of Saudi Arabia. The appellant filed Import General Manifest (IGM) No. 2010343, dated 14 -4 -2011 with the Import Noting Section, NCH, Mumbai on behalf of the aforesaid carrier for their vessel Saudi Abha. Initially the goods manifested under item No. 21 of the said IGM indicated the name and address of the consignee as "Mustaq Trading Co., Govandi, Mumbai". Subsequently, the appellant received a manifest correction notice from the port of loading asking them to change the name and address of the consignee to "R.A. Apparels, Chennai". The appellant applied for amendment in IGM No. 2010343/21, dated 14 -4 -2011 filed in respect of vessel Saudi Abha by application dated 27 -5 -2011. The copies of the original documents such as Bill of Lading, Invoice, Purchase Order, Proof of Remittance, etc., in the name of M/s. R.A. Apparels were also enclosed. The appellant had manifested Bill of Lading No. NSAUAB 152, dated 21 -2 -2011 in the aforesaid IGM. The goods imported were declared as "used 1987 Demag HC 340 Mobile Telescopic Crane SN 74100". The declared assessable value was Rs. 1,17,50,715/ -. The amendment sought was with respect to the name and address of the consignee as below: - -
Name of the Consignee as manifested - M/s. Mushtaq Trading Company, Shop No. 4, Plot No. 93, Gyan Sampada High School, Mankhurd Link Road, Shivaji Nagar, Govandi, Mumbai - 43.
The Shipping Agency sought amendment to the following effect: - -
Name of the Consignee : M/s. R.A. Apparels, 59, Ponappa Street, Purasawalkam, Chennai - 600084.
Further, the appellant requested for personal hearing without issue of SCN. In the course of hearing, the shipper of the goods M/s. Hyson Trading Inc., USA vide letter dated 8 -6 -2011 communicated that initially they sold one unit of used Crane to M/s. Mushtaq Trading in Sept, 2010 and thereafter shipped the crane. However, as the remittance was not received by them as per agreed terms even after 10 months, the said crane was resold by them to new customer, namely, M/s. R.A. Apparels and the original documents were released in favour of the new buyer. It was further averred that M/s. R.A. Apparels be allowed to clear and take delivery of the impugned goods being lawful owner of the same. Upon hearing the concerned parties, the Commissioner of Customs found that the originally shipping line had issued Bill of Lading mentioning name of Mushtaq Trading Company, but later, on request of shipper in the situation of non -payment for the same, was cancelled and a fresh Bill of Lading was issued showing the consignee as R.A. Apparels. It was found that R.A. Apparels have produced original documents like. Bill of Lading, Invoice and Purchase Order and proof of remittance to the shipper/seller whereas Mushtaq Trading Company whose name appeared originally in the IGM have failed to produce any such evidence or original import documents. Further, Mushtaq Trading Company admitted that the crane under import is not of the same model for which they have made initial part payment. Further, the supplier/shipper have also categorically averred the crane in question was sold to R.A. Apparels and original documents were released to R.A. Apparels only. On such finding, it was held by the Commissioner that the 'importer' in this case is R.A. Apparels as defined under Sec. 22(2) of the Customs Act. It was further observed that the impugned order is not to decide the issue of validity of agreement between supplier and the rival claimants. It was further observed that since the importer in this case is R.A. Apparels and their name is not manifested as consignee, the cargo had acquired the status of an un -manifested cargo. It was further observed that the request for amendment is made after grant of the Entry Inward to the vessel, in contravention of Sec. 30 of the Customs Act, making the goods liable for confiscation under Sec. 111(f) and 111(g). Accordingly, the appellant was held liable to penalty imposed under Sec. 112(a). The Commissioner further ordered that the goods be confiscated valued at Rs. 1,17,50,715/ -, being the declared value, redeemable on payment of redemption fine of Rs. 5 lakhs and further penalty of Rs. 1 lakh was imposed on the appellant under Sec. 112(a) of the Customs Act.
Being aggrieved, the appellant is in appeal before this Tribunal.
(2.)Heard the learned AR on behalf of the Revenue. The appellant is absent in spite of several notices. This appeal is coming on board since May, 2014 and the appellant have never appeared in spite of several opportunities given when the notices were issued and date of hearing was fixed on 9 -5 -2014, 4 -6 -2014, 18 -7 -2014, 5 -9 -2014, 9 -10 -2014, 5 -12 -2014, 27 -2 -2015, 24 -3 -2015, 29 -4 -2015 and today. Thus, it is decided to dispose of the appeal on merits upon hearing the learned AR and as per the statement of the facts and grounds of appeal, and the documents on record.
(3.)The grounds raised by the appellant that the appellant have acted on the instruction of the overseas shipper and no mala fide can be attributed to them only for applying for the change of the name of the consignee in the IGM, after the ship was given Entry Inwards by the Customs department. Further, the appellant relies on the Circular No. , dated 24 -11 -2005, which reads as follows: - -
"The matter was re -examined. It has been decided by the Board that all amendments to the Import General Manifest (IGM) may be considered on the basis of the provisions contained in Sec. 30(3) of the Customs Act, 1962. The said Sec. (sub -section 3) provides that if the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete, and that there was no fraudulent intention, he may permit it to be amended or supplemented. Hence the need for adjudication will arise only in cases where there are major amendments involving fraudulent intention or substantial revenue implication arising from the amendments. Further it is possible that in certain special situations such as mother/daughter vessel operation for lighterage on account shortage of draft, congestion of port, natural calamity, the final quantity of goods covered by the IGM would be known only after completion of such lighterage operation, requiring amendment in quantity originally declared at the time of filing IGM. These exceptional situations need to be taken care so that penal action is not initiated mechanically in such situations."
3.1 It is further urged that the adjudicating authority has disregarded the Department's instruction. It is true that the amendment sought by the appellant vide their application dated 27 -5 -2011, which was of substantial nature, for the change in the name of consignee, however, it did not have any revenue, implication. There was neither mala fide intention nor fraudulent act on part of the appellant in making the request for amendment in the facts and circumstances. It is further urged that there is no finding in the impugned order alleging or indicating any fraudulent intention or act on part of the appellant. It is further urged that the Commissioner has erred in not following the departmental instructions and further erred in confiscation of consignment and imposing fine and penalty which is wholly arbitrary and fit to be set aside.
3.2 Further, the appellant relies on the ruling of this Tribunal in the case of Laxmi Saw Mill v/s. Commissioner of Customs, Tuticorin -, 2008 (224) E.L.T. 312 (Tri. -Chennai), wherein it was held that amendment or substitution of another person's name as an importer is a major amendment. However, it is to be allowed if there is no fraudulent intention found on adjudication and amendment to be permitted subject to production of documentary evidence of title of goods of new person under Sec. 30(3) of the Customs Act. In the facts and circumstances, there being no finding as to fraud or any other misgiving, and all the documents were produced, as recorded by the Commissioner, the confiscation of consignment and further imposition of penalty is bad.