Moheb Ali M., Member (T)

1. This appeal is filed against the order of Commissioner of Customs, Nhava Sheva, Maharashtra. In the impugned order the Commissioner confiscated unmanifested cargo under Section 111 (f) of the Customs Act and imposed a penalty of Rs. 40,000/- under Section 112 (a) of the Customs Act on the appellant.

2. The findings of the Commissioner as stated in the impugned order are set out below:

"I have carefully considered the written and oral submissions and examined the case records. The facts are not in dispute in this case. Goods of value Rs. 42,51,868/- were not manifested and these goods had a duty liability of Rs. 16,75,026/-. Section 30 of the Customs Act, 1962 relating to the filing of the import manifest provides clearly that the manifest must be complete and correct and the person delivering the import manifest shall at the foot thereof make and subscribe to a declaration as to the truth of its contents. Any dutiable goods that are imported and not included in the IGM are liable for confiscation under Section 111 (f) of the Customs Act 1962. Section 32 of the Customs Act, 1962 provides that imported goods shall not be unloaded unless mentioned in the import manifest. In the present case, the unmanifested goods which are dutiable have been unloaded, and therefore, there has been a violation of Section 32 rendering the goods liable for confiscation under Section 111(g) of the Customs Act, 1962. For rendering the goods liable to confiscation the steamer agent is liable to be penalized under Section 112(a) of the Customs Act, 1962."

3. The appellants plead that when they became aware of the fact that certain cargo carried on board the vessel was not manifested, they applied for an amendment of their manifest. This application for amendment was made to the proper Office i.e. Assistant Commissioner / Dy. Commissioner in charge of import section of the Customs House. While no action has been taken on this application the Commissioner adjudicated the case, confiscated the goods and imposed penalties. As per Section 30(3) of the Customs Act, an application for amendment to IGM can be filed and the proper Officer has to allow such amendment, if there is no fraudulent intention behind such application. The appellant relied on the decision in the case of James Mackintosh & Co. Pvt Ltd v. Commissioner of Customs, Mumbai [: 2004 (166) ELT 88 (Tri.Mumbai)] wherein the Tribunal held confiscation of unmanifested cargo and consequent penalty on the steamer agent cannot be ordered pending an application for amendment to IGM.

4. Heard both sides.

5. Following the ratio of the above said decision, the appeal is allowed. The order of the Commissioner is set aside.

(Operative part pronounced in Court)