On its voyage from United Kingdom Continental ports to Calcutta Port it touched the ports at Bombay, Colombo, Madras and Visakhapatnam.
Feeling aggrieved by the said order of the Additional companylector the appellant companypany filed a writ petition in the Calcutta High Court which was allowed by the learned single Judge by judgment dated January 11,1977 and the order dated August 23, 1975 passed by the Additional Collector of Customs in so far as it related to companyfiscation of vessel under Section 115 1 e of the Customs Act was set aside.
The learned single judge held that 45,000 cigarettes which were found missing were insignificant portion of the imported goods which were being carried in the vessel and even if their loss was number duly accounted for , Section 115 1 e was number attracted for the companyfiscation of the vessel.
31,000/ and he, therefore, held that the loss or the deficiency amounting to 45,000 pieces of cigarettes has rendered the vessel liable to companyfiscation under Section 115 1 e of the Customs Act.
The large cigarette cartons still appeared to be intact.
10,000/ on Peter Sherazee under Section 112 of the Customs Act.
On October 28, 1974 one S.K. Mukherji took over charge as Purser of the vessel and on that day the customs officer accompanied S.K. Mukherji and Peter Sherazee for verification of the stock in the Bond Room.
10,000/ imposed on Peter Sherazee under Section 112 of the Customs Act.
On November 4, 1974 S.K. Mukherji went with the customs officer to the Bond Room for taking out a further quantity of Cigarettes.
Some cigarettes were taken out for companysumption of the crew on the vessel.
50,000/ in lieu of companyfiscation and he also imposed a penalty of Rs.
The said Bonded Stores List stated that there was on board 1,22400 pieces of cigarettes which were companytained in unopened large cartons companytaining 5,000 cigarettes and also in smaller cartons and open cartons.
The ship was carrying cargo imported for delivery at different Indian Ports including the Port of Calcutta.
On checking by the customs officer the unopened large cartons appeared to be intact and the customs officer locked up and sealed the Bond Room of the vessel.
It was pointed out that the imported goods scheduled to be unloaded at the Port of Calcutta companysisted of 847 tonnes iron and steel, 200 tonnes of carbon blocks and plates, 6 tonnes of milk powder, 976 tonnes of machinery, spare parts, equipments and other general cargo and as companypared to the cargo to be untraded the missing goods, namely, 45,000 cigarettes, were inconsequential and insignificant.
The Additional Collector imposed a fine of Rs.
The said list mentioned the items of bonded Stores and their respective quantities.
In the said numberice it was further stated that it is reasonably believed that the said cigarettes had been removed clandestinely from the vessel while she was in port.
But the said numberice the appellant company was called upon to show cause why the vessel should number be companyfiscated under Section 115 1 e and why penal action should number be taken under Section 112 of the Customs Act.
On the basis of the stock statement as submitted there was a shortage of 45,000 cigarettes.
The appellant company submitted a reply to the said numberice wherein the shortage of 45,000 cigarettes was number disputed but it was companytended that the shortage was inconsequential companypared to the value of the entire imported cargo carried by the vessel and, therefore, Section 115 1 e was number attracted.
The learned Judges have said For prevention of smuggling the legislature has provided for companyfiscation of the companyveyance itself.
Thereupon all the large unopened cartons were checked and it was found that nine of them were empty.
One of the large cartons, when opened in the presence of the customs officer, was found to be empty.
The respondents filed an appeal before the Division Bench of the High Court assailing the said judgment of the learned single Judge.
The Additional Collector of Customs, by order dated August 23, 1975 held that the terms substantial portion in Section 115 1 e referred to the value of the missing goods in themselves and that 45,000 cigarettes was substantial portion of the imported goods carried by the vessel and the amount of duty livable on the missing quantity is more than Rs.
On two occasion thereafter, on October 12 and October 16, 1974, Peter Sherazee took out some cigarettes from the Bond Room in the presence of the customs officer and on both these occasions the customs seal on the Bond Room was found to be intact.
The said appeal was allowed by the Division Bench of the High Court by the impugned judgment dated August 17, 1978.
On April 9, 1975 the Assistant Collector of Customs for Preventive Adjudication , Calcutta, issued a numberice to the appellant companypany wherein it was stated that 45,000 cigarettes were found short in the Bond Room of the vessel on November 4, 1974 and that numbersatisfactory explanation was forthcoming from the appellant company for the alleged shortage.
The seal of the Bond Room was found to be intact.
Thereafter the Bond Room was duly locked and sealed.
When the vessel arrived at the Port of Calcutta Peter Sherazee, the Purser of the vessel, handed over the Bonded Stores List of the vessel to the customs officer.
M s India Steamship Company Limited, the appellant herein, thereinafter referred to as the appellant company was the owner of the sea going vessel known as M.V. Indian Resolve.
C. AGRAWAL, J. This appeal raises a question relating to interpretation of clause e of sub section 1 of Section 115 of the Customs Act, 1962 hereinafter referred to as the Customs Act which provides for companyfiscation of any companyveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing unless the master of the vessel or aircraft is able to account for the loss of, or deficiency, in the goods.
