IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.07.2008 CORAM THE HON'BLE MR.JUSTICE S.NAGAMUTHU W.P.No.40311 of 2006 & M.P.NO.1 of 2006 M/s.Kwick Handling Service Pvt. Ltd Presently known as M/s.Sikkas Kwick Handling Service (P) Ltd Plot No.23, Ground Floor, 24 Wellington Estate Ethiraj Salai, Chennai 600 008 Represented by its Branch Manager Mr.R.Ramachandran. .. Petitioner Vs The Joint Secretary, Department of Revenue, Ministry of Finance, Government of India, No.14, Hudco Vishala Building, "B" Wing 6th Foor, Bhikaji Cama Place, New Delhi 110 066. .. Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a writ of certiorari calling for the records of the impugned order bearing No.524/06 dated 29.09.2006 passed by the respondent so far as confirming penalty to an extent of Rs.10,000/- and quash the same as arbitrary. For Petitioner : Mr.M.Balagopal for M/s. S. S. Radhakrishnan For Respondent : Mr.Patty B.Jeganathan(SCCG) O R D E R Though the miscellaneous petition is listed today, by consent of both sides, the writ petition itself is taken up for final disposal. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner is a licensed Custom House Agent(CHA). On 03.02.2004, the petitioner company admitted two cardboard boxes containing the personal effects as unaccompanied baggage of one Ms.Birgitte Arnak Pedersen at Chennai port for export to Denmark. The consignment along with the Shipping bill No.0625691 dated 03.02.2004 were examined in the presence one Mr.G.Ramasamy representing the petitioner company and during such examination, it was found that there were six objects, namely three numbers of metal ornaments, two numbers of metal belts and one idol in a glass case, apart from the personal effects. Since the above six objects looked very old, the same were sent for certification by the Department of Archaeological Survey of India (A.S.I.) as non-antiques. Accordingly, they were placed before an Expert Advisory Committee of A.S.I. 3. During interrogation on 08.04.2004, Mr.G.Ramasamy, the representative of the petitioner company stated that the passenger namely Ms.Birgitte Arnak Pedersen came to India as a tourist and left for Denmark on 11.03.2004 by Air India Flight and before leaving India she gave her personal belongings to the petitioner company to send the same to Denmark. He had further stated that the petitioner company admitted the said goods under the shipping bill No.0625691 dated 03.02.2004. However, the above metal goods were not declared in the said shipping bill. The shipping bill declared as if the consignment contains the personal effects of Ms.Birgitte Arnak Pedersen. The said metal case were duly detained under a Mahazar on reasonable suspicion as they may be antique. 4. The above matter was referred to Docks Intelligence Unit (DIU) on 17.05.2004 and the consignment was examined by the DIU officers in the presence of the petitioner's representative, Custom House Agent and warehouse officer on 08.06.2004. Thereafter, they were duly seized under the Customs Act, 1962 read with Section 3 of Antiquities and Art Treasure Act, 1972. 5. The Superintending Archaeologist, Archaeological Survey of India, Chennai Circle inspected and certified the antiquity nature of the detained goods by his letter No.6/1/2004/Ant-1870 dated 28.04.2004. He certified that the idol in a glass case was antique. On the basis of the said certificate, the customs authority requested the Commissioner of Museum, Egmore to depute a person to value the antique. Accordingly it was valued at the Customs House and its value was fixed at Rs.6,00,000/-. 6. The representative of the petitioner's Company in his statement dated 23.09.2004, inter alia, stated that he did not know about the metal object concealed in the baggage. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, a show cause notice was issued by the Joint Commissioner of Customs, Adjudication Unit (SEA) on 19.11.2004 calling upon the petitioner as to why penalty should not be imposed on the petitioner company for having filed the shipping bill by misdeclaring the antique as Plastic Buddha idol in the shipping bill and presented the goods for export, though the baggage contained antique among personal effects of Ms.Birgitte Arnak Pedersen. It was also informed that penal action under Section 114 of Customs Act, 1962 would be initiated. 7. In the reply submitted by the petitioner company to the Joint Commissioner of Customs, it was stated that the shipping bill was prepared by the petitioner company officials based on and fully believing the information provided by the passenger in an invoice cum packing list. The said packing list declared the list of only personal effects of the passenger. It was further stated in the reply that it was not possible for the Customs House Agent to open and inspect the cargo to verify the description in the invoice before preparing the shipping bill and such an exercise is not feasible. It was further stated that the petitioner company can not be held responsible for the act of Ms.Birgitte Arnak Pedersen who misdeclared some goods and failed to declare some other goods. 8. After considering the explanation of the petitioner, the Joint Commissioner of Customs (Adjn-Sea) by letter dated 08.02.2005 ordered for confiscation of the antique worth Rs.3,00,000/- and also ordered confiscation on the other objects also worth Rs.37,000/-. However, with an option to pay Redemption fine of Rs.20,000/- to get these objects returned. He also imposed a penalty of Rs.3,00,000/- on the petitioner besides a penalty of Rs.2,00,000/- on Ms.Birgitte Arnak Pedersen. In the said order, the Joint Commissioner had found that the petitioner company had misdeclared the goods as plastic Buddha idol. 9. Challenging the said order of the Joint Commissioner, in respect of the penalty of Rs.3,00,000/- imposed alone, the Petitioner preferred an appeal before the Commissioner of Customs(Appeals), Custom House, Chennai. The appellate authority by his proceedings No.C4/268/o/2005-Sea C.Cus No.392/2005 dated 16.05.2005 dismissed the appeal thereby confirming the findings of the Joint Commissioner. However, taking a lenient view, he reduced the penalty imposed on the petitioner from Rs.3,00,000/- to Rs.25,000/-. Thereafter, the petitioner preferred a revision before the Government of India, in the Ministry of Finance (Department of Revenue) which was also dismissed on 29.09.2006. Challenging the same, the petitioner has come forward with this petition. https://hcservices.ecourts.gov.in/hcservices/ 10. The learned counsel for the petitioner would submit that the findings of the authorities below that the petitioner company misdeclared the goods in the customs bill is factually incorrect. He would further submit that the petitioner acted bonafide based on the documents produced by the passenger that the consignment contained only personal effects of Ms.Birgitte Arnak Pedersen and there was no occasion for the petitioner company to open the consignment and then to make the declaration in the Bill. 11. The learned counsel appearing for the respondent would submit that this writ petition is not maintainable since this Court cannot go into the findings based on facts made by the two authorities below. He would further submit that it is the bounden duty of the Customs House Agent to verify the goods and then to make proper declaration in the Customs Bill. Since, in this case, the petitioner had made a wrong declaration as if the object in the glass case was a Buddha idol made of plastic though it is an antique, penalty was rightly imposed and so according to the learned counsel for the respondent, this writ petition is liable to be dismissed. 12. I have carefully considered the rival submissions. At the outset, I have to say that it is hard to believe that the petitioner had no occasion to open the consignment and to know the contents of the same and that the petitioner company believed only the declaration made by Ms.Birgitte Arnak Pedersen. As per the law, requirement to give a declaration regarding the contents of the consignment means, such declaration should be made only on physical verification of the goods. In this case, the petitioner's contention is that he did not verify the goods as he believed the declaration made by the passenger. In my considered opinion, this statement cannot be accepted since in the Customs bill, the petitioner had declared that the glass case contained the Buddha idol made of plastic. This declaration has been made falsely. The two authorities below have considered this and taken a view that the petitioner has made the said declaration only on knowing the real contents of the consignment. It is settled law that this Court cannot convert itself into a Court of appeal or revision to take a different view then the one which has taken by the two authorities below. The petitioner has, with ulterior object, made the misdeclaration for which penalty has been imposed by the authorities rightly on the petitioner and I do not find any reason to interfere with the same. In respect of the quantum of punishment also the first authority had imposed a sum of Rs.3,00,000/- as penalty which was reduced by the appellate authority to Rs.25,000/- by having a lenient view. Unless the https://hcservices.ecourts.gov.in/hcservices/ said amount is shockingly disproportionate and highly unreasonable, this Court cannot interfere with that also. In this case, the fine of Rs.25,000/- is very reasonable which also does not require any interference. For all the reasons stated above, the writ petition fails and the same is dismissed accordingly. No costs. Consequently connected miscellaneous petition is closed. kpr/jikr Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Joint Secretary, Department of Revenue, Ministry of Finance, Government of India, No.14, Hudco Vishala Building, "B" Wing 6th Foor, Bhikaji Cama Place, New Delhi 110 066. + 1 cc to Mr. Patty B. Jeganathan, Advocate SR No. 35656 W.P.No.40311 OF 2006 LA(CO) SR/1.8.2008 https://hcservices.ecourts.gov.in/hcservices/