TaxTMI 
TaxTMI 
2019 (12) TMI 1448
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....sequently, the entire manifested consignment is said to have been discharged at Tuticorin Port under the supervision of an independent surveyor namely M/s. Ericsson and Richards (Tuticorin) who certified that the entire manifested quantity had been discharged at the Tuticorin Port. 5. Importer's agent namely Vallavarayar and Sons also did not notice any shortage in the discharge of the manifested quantity at time of discharge of the import consignment at the Tuticorin Port. 6. Before the consignment was discharged, the importer filed Bill of Entry dated 14-12-1995 and later cleared the consignment. 7. Later, the importer filed an application for remission of customs duty under Section 23 of the Customs Act, 1962 stating that there was short receipt of quantity by it. Remission of duty was disallowed. 8. Under these circumstances, the importer filed an appeal before the Commissioner of Customs (Appeals). The Commissioner of Customs (Appeals) allowed importers appeal vide order dated 16-12-1997 bearing reference C. CUS. No. 1493/1997. The relevant portion of the aforesaid order reads as under :- In this case, the refund claim for Rs. 1,77,547/....
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.... of the same feeling which the matter would be adjudicated without further reference to the petitioner. 14. The petitioner replied to the above show cause notice on 18-8-2000. Without adjudicating the said show cause notice, a 2nd show cause notice was later issued to the petitioner on 31-1-2004. 15. The petitioner also replied to the said show cause notice. The 2nd show cause notice ultimately culminated in an order dated 18-5-2005 of the Deputy Commissioner of Customs. The Deputy Commissioner of Customs dropped the proceedings based on the available evidence on record. 16. However, the said order was appealed against before the Commissioner of Customs (Appeals) on 13-4-2006. This was pursuant to a review of the said order of the Deputy Commissioner of Customs under Section 129D(2) of the Customs Act, 1962 by the Commissioner. 17. The said Appeal was numbered as Appeal No. C24/1/2006-TTN-(Cus) (Deptt.). The Commissioner of Customs (Appeals) by an order dated 11-8-2006 reversed the order passed by the Deputy Commissioner of Customs in Order in Original No. 94/05-06 with the following observations : "........ There is no dispute that penalty ....
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....firmed by actual weighment as per the manifested (measurement) Units i.e. M. Tonnes. Therefore, the submission of the applicant that cargo was discharged in full as per initial survey report does not hold good till a report containing actual weighment receipt details is finalized and Govt. feels that the legal responsibility of steamer Agent i.e. the applicant's does not ceases on mere initial outer surveys of said full discharge of cargo loaded in the ship. The Steamer Agent do remains liable for actual and proper weighment/measurement. Since short receipt has actually happened in this case, which may be due to any of the reasons, the legal liability remains that of steamer which may be due to any of the reasons, the legal liability remains that of steamer agent i.e. the applicant. Therefore, Govt. is of the opinion that the applicant has rightly been held as liable for action under Section 116 of Customs Act, 1962 in this case. 7. Now Govt. takes up the point of "Limitation". The applicant's sole reliance on this issue is upon "O bitter dicta" judgments specifically that of Hon'ble High Court in Writ Petition No. 528/1995. On this Govt. is of the view that the fact ....
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.... from the date of imports. He further submits that the proceeding under Section 116 has to be co-terminus with the proceedings against an importer under Section 28 or under Section 27 of the Customs Act, 1962 in the case of refund of customs duty. 23. It is submitted that it cannot be independently issued after a lapse of limitation under Sections 26, 27 and 28 of the Customs Act, 1962. In any event, he submits that show cause notice after lapse of 15 years of the subject import was time-barred. The Learned Counsel for the petitioner refers to the decision of the Bombay High Court dated 12-6-1995 in W.P. No. 528 of 1995 rendered in 1995 (80) E.L.T. 781 (Bom.), wherein it was held as under :- "The exercise of powers under Section 116 of the Customs Act, if necessary, must be undertaken within a reasonable time. Shri Venkateswaran submitted that the Customs Excise and Gold Control Tribunal has held that show cause notice issued beyond the period of five years from the date of vessel leaving the Port is arbitrary and unreasonable. In our judgment, the period of five years is more than reasonable. Indeed, the bond executed by the Agents should also be for a duration of....
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....e importer has also been given refund of the duty on account of short land of the imported consignment and therefore the 1st respondent was justified in upholding imposition of penalty under Section 116 of the Act. 30. I have heard the Learned Counsel for the petitioner and the respondent. I have also perused the records. 31. It may be useful to refer to Chapter VI of the Customs Act, 1962 which deals with provisions relating to conveyances carrying imported goods. 32. As per Section 29 of the Customs Act, the person-in-charge of any vessel or any aircraft entering India shall not permit the vessel or aircraft to call or land at any place other than the customs port or customs Airport. 33. Under Section 30(1) of the Act, the person-in-charge of a conveyance carrying imported goods shall within twenty-four hours after arrival at the Customs Station, deliver to the customs officer an import manifest making and subscribing a declaration as to the truth of its contents. 34. The imported goods are not permitted to be unloaded until an order has been passed by the proper officer granting entry inwards to such vessel under Section 31 of the Act. Sec....
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.... not accounting for goods. - If any goods loaded in a conveyance for importation into India, or any goods transhipped 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 that destination, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the 1[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 transhipped 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." 41. The importer had claimed remission of duty under Section....
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....he survey report of M/s. Peirce Leslie clearly states that the survey was conducted in zone 'A' only and no survey was conducted in zone 'B'. Even with respect to zone 'A', it concedes that a proper tally could not be made towards the completion of discharge. 18. Therefore I find that neither document can be deemed to be a conclusive evidence to the fact that the entire cargo was not received. 19. In their reply to the show cause notice issued by this office, the importer has categorically mentioned that their claim for refund is based on the survey report. However the survey report in question suffers from various deficiencies as discussed above and therefore, I find that it cannot permit the basis for settlement of this refund. 20. Even at the time of personal hearing, the importer has only reiterated that their refund claim is based on the Port Trust Certificate and the survey report. 21. They have further claimed that their overseas insurance company has settled their claim on the basis of the survey report. 22. However as discussed supra, the survey report itself is defective and therefore the insur....