There
were 11x20’ FCL containers loaded with Rapeseed (Brassica napus) discharged at
Kolkatta port in transit to Nepal. All the containers were apparently intact
condition. Seals as per BL affixed on containers door. But out of total
2,46,510 Kgs short landing was 2,30,100 Kgs. The total assessable value of
short landed quantity is ₹ 69,67,163/- involving duty of ₹ 52,25,372/-.The
Customs Department had imposed a penalty
of ₹ 10.00 Lakhs on the Steamer Agent under section 116 of Customs Act, 1962
for short landing of goods.
Let us see what happened later as follows ;
The
survey was carried out on noticing the shortage of goods. The joint survey
report states ;
“…. on opening the containers (In presence of
Customs Authority) it was found that all the containers having 2 to 4 cut/holes
(Approx 3” to 6”) on the floor. During inspection of under structure it was
found that the holes of floor (both 1st ply and cross member – 4 to 6) of
containers were blocked by plywood sheet duly fixed by screws and pointed with
black colour …….”
Hence
we can understand from the survey report that container’s bottom floor was
broken and cargo was stolen. Holes were blocked by plywood sheets again.
In
reply to the show cause notice, the Steamer Agent stated that they have
fulfilled their obligation under the contract of carriage in this shipment.
According to them after the discharge of the containers it is the
responsibility of the consignee to comply with the port and customs rule by
paying statutory dues and take delivery of goods. They have said that there is
a clear endorsement in the Bill of Lading that particular furnished by the
Shipper were not checked by the carrier and carrier is not responsible under
clause 14 of the Bill of Lading. Therefore, carrier is not held liable for any
misdeclaration or fraud made by the exporter/consignee or their agents.
According to them cargo is for final destination to Nepal under Transhipment
Permit discharged at Kolkata and all these containers were discharged and
delivered in seal intact status to consignee and their authorized Customs House
Agent.
Also
no duty is involved in the case as the cargo was meant for Nepal Transit and
not Indian Import. They have also said that they are not the owner of the
vessel carrying the consignments and therefore they are not liable for the
short shipment as they were acting as agent of the container owner.
In
the High Court of Judicature at Bombay in the case of Seahorse Shipping &
Ship- Management Pvt.Ltd. Vs. Union of India 2004 (163) E.L.T. 145 (Bom.),
whereby it has been held that in case of short landing of goods alleged when
seals of containers are found intact, shipping agents cannot be made liable and
penalty cannot be levied solely based on the outturn report of port Trust.
Penalty was set aside as imposed under Section 116 of Customs Act, 1962.
In
the impugned Bill of Lading the term ‘Shippers Load Stow & Count’ is
mentioned in the description. As long as the seal has not been altered or
tampered with, the carrier cannot be held liable for the shortage because the
carrier was not present at the time of the packing of the container and carrier
does not know what the shipper loaded, stowed or counted. Bill of Lading shows
details that was provided by the shipper.
Hence
it is declared by CESTAT that ‘Shipper’s Load Stow and Count’ is the term seen
in the description of the Bill of Lading for the shipment. This term absolves
steamer agent/carrier of any claim relating to damaged or missing cargo etc.
M/S.
MSC AGENCY (INDIA) PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS (PORT) ,
KOLKATA, CESTAT KOLKATA order pronounced on 11.03.2020
Please
Visit :https://eximblogs.blogspot.com/
www.eximblogs.com
#Customs
Law Quick Bites-35
No comments:
Post a Comment