METRACO INDIA LTD Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS is an appeal directed against the order of the Addl. Collector of Customs, Bombay bearing No. SG-Misc 122/CR/88/S/10-76/CR/89 SUB dated 23-3-1989 ordering confiscation of 4 consignments of Cassia totally valued at Rs. 17,85,780/- but allowing the goods to be redeemed on payment of fine of Rs. 9 lakhs. The Addl. Collr. has also imposed a penalty of Rs. 2 lakhs on the appellants.

(2.) The main facts of the case for the purpose of disposal of the appeal can be summed up as below:

(3.) SHRI Nankani, while conceding that in this case no L/C was opened and established, contended that there cannot be any mala fide attributed to them, firstly, they were not even aware of the Correction Advice communicated by Mitsui OSK Lines Ltd. to the Steamer Agents at Bombay till the date of adjudication. Only after the adjudication, when they approached the Steamer Agents, they got the copy of the Correction Advice. Hence, they cannot be expected to be aware of the fact that the goods were loaded on board only on 12-12-1988, in the absence of any communication to that effect. They have been under the bona fide impression that the goods had been loaded on 28-11-1988, as per the date on the B/L. Moreover, they have submitted the B/E for warehousing. If there had been any mala fides on their part, they would have rushed to take the clearance of the goods. The very fact that they have submitted a B/E for warehousing, indicates that they were not ware of any manipulation on the date of B/L. He also took us through the provisions of Rule 3 of the Schedule of Rules relating to the Bs/L in the (The Indian). Carriage of Goods by Sea Act, 1925 and submitted that after receiving the goods into his charge, the carrier or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper, a bill of lading showing the marks and number of packages, the order and condition of the goods. In this case they also produced a certificate from M/s. Onward Cargo Service, Hongkong to the effect that the impugned goods were delivered to the warehouse of Mitsui O.S.K. Lines Ltd. Hongkong on 27-11-1988. Hence the goods have been received by the Shipping Lines on 27-11-1988 and they have issued the B/L on 28-11-1988. As per the provisions contained in para 82 of the Handbook in the case of shipment made by sea, the date of shipment will be the date on the B/L. This is in contradistinction to the goods shipped by Airway. Under para 83 of the Handbook, it is laid down that the ( ate of the relevant Airway Bill will normally be taken as the date of despatch, provided this represents the date on which the goods left the last airport in the country from which the import is effected. He also contended that the Correction Advice only seeks to alter the date of loading on board the vessel. All the same it confirms the date of the B/L. Hence, by virtue of provisions of para 82 of the Handbook, the date of B/L being 28-11-1988, it should be construed as the date of shipment and the goods allowed under OGL. Referring to para 86 of the Handbook, he pointed out that validity of the import licence is decided with reference to the date of actual shipment/despatch of the goods from the supplier's country and in the case of shipment made by sea, this has to be reckoned as the date of the B/L as per the provisions of para 82.