TaxTMI 
TaxTMI 
2013 (2) TMI 668
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....ed quantity of 462.7 MT. 3. Being aggrieved by the said order-in-original, the applicant filed an appeal before Commissioner (Appeals) who upheld the impugned order and rejected the appeal. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 129DD of Customs Act, 1962 before Central Government on the following grounds : 4.1 The Lower Authority erred in not taking into consideration the fact that both the stowage plan and the Bill of Lading reflect the quantity of cargo that has been loaded viz. 43729.300 Mts. and which quantity in any event is not in dispute, more so when the alleged shortage has been arrived at only on the basis of the Bill of Lading quantity. The vessel did not carry any other cargo, apart from the aforementioned cargo. Hence it is incorrect to conclude that there is no evidence to reflect the quantity that has been loaded. The Lower Authority has not taken into consideration the fact the Statement of Facts prepared after the discharge of the vessel and as per which, the receivers agent have admitted that the bill of lading quantity of 43729.300 Mts comprises of mixture of car....
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....f the Bill of Lading quantity of 43729.300 Mts. leaving an excess of 180.49 Mts., and that the applicant has not properly justified the anomaly viz. excess discharge, thereby not appreciating that in practice, raw petroleum coke is loaded in a wet condition and the quantity of moisture and cargo are not separately indicated. 4.5 The Lower Authority erred in not extending tolerance limit. The Lower Authority failed to take into consideration the fact that it is the usual practice to extend tolerance limit and that the Joint Commissioner of Customs has in an identical case passed in File No. IGM5676/2004, order dated 30-10-2009 bearing No. 9916/2009-MCD, held that prior to levying penalty for short landing of raw petroleum coke, a tolerance limit of 1% is to be allowed and a steamer agent is liable for penalty only on the excess of 1%, if all. Hence, in the present case, if 1% tolerance limit is extended a quantity of 437.2 Mts could be allowed to be condoned and the appellant would be liable only for the shortage in excess of 437.2 Mts viz. a quantity of 25.5 Mts being the difference in shorthanded quantity of 462.700 MTs and tolerance limit of 1% of the manifested quantity ....
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....ithout moisture and if not how much moisture has been left out. The Lower Authority there erred in concluding that the Shipping Agent ought to have obtained the load port survey report with all mandatory documents and that no document indicating the nature of cargo, tolerance limit, moisture content has been produced. 5. Personal hearing in this case was scheduled on 8-10-2012 and 13-12-2012. The hearing held on 13-12-2012 was attended by Shri C.J. Shyamala, Advocate on behalf of the applicant who reiterated the grounds of revision application. In a written submission dated 12-12-2012 they further relied upon the decision of Hon'ble Revisionary Authority dated 29-12-1987 and 27-4-1988 passed in the cases of South India Corporation Agencies Ltd. and Shaw Wallace and Company respectively and they further referred Hon'ble Calcutta High Court order in the case of Mackinnon Mackenzie & Co. Ltd. v. CC (A) reported in 1989 (43) E.L.T. 36 (Cal.) in which it was held that penalty under Section 116 being penal in nature all relevant evidence to be considered by the customs authorities and penalty not imposable mechanically. Shri B. Santhana Vannan, Deputy Commissioner (MCD) appeared ....
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....ount for setting off the shortage of pet coal. In this regard Government notes that the applicants has not produced the relevant contract/purchase order, invoice, bill of lading, etc., between the supplier and the importer indicating the nature of cargo, tolerance limit, percentage of moisture content, if any, in support of his claim that cargo had a moisture content which transferred into bilged water pumped out of ship during voyage. If the cargo has moisture content, then the same is required to be mentioned in the import document issued by supplier. When the moisture content and its percentage in the cargo are not explicitly mentioned, the plea of the applicant is not supported by valid documentary evidence. In the absence of any such proof, the applicant's plea to cover up the short landing taking into account the bilged out water, cannot be accepted. The contention of applicant that instruction had been given to the captain of the vessel to the effect that the cargo that was loaded on the vessel contains water, which has to be bilged out periodically cannot be of any help in the absence of any documentary proof as pointed out above. Moreover the discharged quantity of Pet Cok....
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....the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity unloaded is short of the quantity to be unloaded at the destination, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs, the person-in-charge of the conveyance shall be liable, - (a) In the case of goods loaded in a conveyance for importation into India or goods transshipped under the provisions of this Act, to a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been imported; (b) In the case of coastal goods, to a penalty not exceeding twice the amount of export duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been exported." The said provision stipulates that penalty is to be imposed for not unloading the goods which were loaded in the vessel for importation into India. As per the IGM, in....