2002 (8) TMI 130 - HC - Customs

High Court overturns penalty for cargo shortage based on erroneous measurement method, directs reevaluation.

The High Court overturned the penalty imposed by customs authorities on the petitioners for alleged short landing of cargo, finding the use of shore tank ... Penalty (Customs) Issues:Challenge to customs authorities' orders imposing penalty under Section 116 of the Customs Act, 1962 for alleged short landing of cargo.Analysis:The petitioners challenged the penalty imposed by customs authorities for alleged short landing of cargo from a foreign flag vessel at the Port of Kandla. The dispute arose regarding the method to determine the shortage - whether based on ullage report or shore tank measurement. The Assistant Collector alleged a shortage of Aviation Gasolene based on shore tank measurement, leading to the penalty imposition. The petitioners argued that shortage should be determined using ullage measurement, citing previous court decisions favoring this method.The High Court referred to past judgments like Shaw Wallace & Co. Ltd. and others, emphasizing that ullage measurement at the time of discharge is the scientific method to ascertain shortages, not shore tank measurement. The court agreed with these precedents, deeming the penalty based on shore tank measurement as erroneous. Additionally, the court addressed the jurisdictional aspect, asserting its authority to decide the matter despite objections from the Revenue, citing relevant case law.Consequently, the court quashed the penalty orders and directed the authorities to reevaluate the penalty based on ullage report, allowing for permissible shortage adjustments. The authorities were instructed to conduct a fresh penalty assessment, granting the petitioners a personal hearing before December 31, 2002. Any excess amount deposited by the petitioners was to be refunded with interest, and the petition was disposed of without costs.