TaxTMI 
TaxTMI 
2013 (12) TMI 1465
X X X X Extracts X X X X
X X X X Extracts X X X X
....ner of Customs (MCD), Customs House, Vishakhapatnam. 2. Brief facts of the case are that the applicant being the steamer agent had filed IGM No. 0307/12 under Section 30 of the Customs Act, 1962 for the vessel M.V. ARKTO arrived in Visakhapatnam Port with 5,400 M.T. of Ammonium Nitrate, manifested to be discharged here on account of the importer M/s. Indian Explosives Ltd., Kolkata. On scrutiny of the IGM, it was found that as per the joint draught survey done by M/s. Pinnacle Marine Services (P) Ltd & M/s. Peters & Prasad Associates, surveyors the quantity of discharged cargo was 5301 MT resulting in short landing of 99 MT of Ammonium Nitrate for which a show cause notice dated 18-7-2012 was issued to the steamer agent and the duty w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2012 (5400 MT) were furnished by the shipper and the vessel had not acknowledged the same after loading the cargo. It is clearly stated in the Bill of Lading that "Weight, measure, quality, quantity, conditions, contents and value unknown". Hence it is clear that the vessel had no knowledge of the exact quantity of the cargo loaded in the vessel and the figures reflected in the Bill of Lading is as stated by the Shipper. 4.4 The respondent failed to appreciate the fact that while carrying the bulk cargo, there occur certain losses arising out of Loss of Board (LoB), Loss at Pier (LoP) and other handling losses at different places. The cargo being Ammonium Nitrate these had some losses due to moisture contents. To add up to these losse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enalty for the entire short landed quantity of cargo on the sole ground that the total quantity of short landed cargo is 1.83% and hence the defense of permissible limit does not apply in the above case. Since the respondent had accepted the dictum laid down in the Shaw Wallace's case, the respondent should have imposed penalty only after deducting the permissible limit of 54 MT (1% permissible limit) and hence the respondent should have penalized the revision petitioner only for 45 MT (which comes in excess of the 1% permissible limit) and not for the entire 99 MT. 4.8 The revision petitioner prays that this Hon'ble authority may be pleased to set aside the order-in-appeal No. 8/2003 V C H of the Customs Commissioner (Appeals), dated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ery of import manifest or import report with true declaration therein. Further Import Manifest (Vessel) Regulations, 1971 provides the nature condition and position (including status) to be truly declared as per respective declaration form. It is therefore quite clear that "Manifest" is to be considered a basic legal document and the declarations made therein are to be taken as statutory declarations for the purpose of further action under the relevant provisions of Customs Act, 1962. Similarly, Chapter V of the Act provides for levy and assessment of Customs duties and Section 13 thereof when read with provisions of Bill of Entry (Form) Regulations, 1976 the legality of the duty levied in this case can be clearly understood. Further for le....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fulfilment in respect of matter in question of all obligations imposed on such person-in-charge by or under this Act or any law for the time being in force and to penalties and confiscation which may be incurred in respect of that matter. 8.2 The penal provisions as contained in Section 116 of Customs Act, 1962 are : "116. Penalty for not accounting for goods. - If any goods loaded in a conveyance for importation into India, or any goods transshipped under 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of these principles laid down by Hon'ble Supreme Court, the penal action is rightly taken against steamer agent under Section 116, by the lower authorities. 9. Applicant has contended that there is general practice of allowing 0.5% tolerance limit in the shipment of almost all bulk cargo. At the same time applicant is also claiming losses up to 1% in terms of Bombay High Court judgment in the case of Shaw Wallace & Co. Ltd., 1987 (3) Bom CR351 = 1986 (25) E.L.T. 948 (Bom.) Government notes that in the said case the tolerance limit of 1% was in respect of the liquid cargo of Aviation Gasolene. So, it cannot be made applicable to bulk cargo of Ammonium Nitrate. The contention regarding allowing 0.5% allowance as general practice was rai....