TaxTMI 
TaxTMI 
2020 (3) TMI 1306
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.... Customs authorities refused to sign the said survey report despite them being present when the survey was conducted and the report prepared. Hence order of the lower authorities cannot be assailed on this ground. 5.3. The applicant's have further pleaded that lower authorities have resorted to impose a penalty twice the amount of duty that would have been chargeable on the goods said to be short landed without any mala fide intention on the part of the applicants. On this contention Govt. would observe that as per above finding short landing in the goods is established and the applicants failed to account satisfactorily for the said short landing in the impugned goods in terms of provisions of Section 116 r/w 148 of the Customs Act, 1962. Hence the applicants are liable for penalty under Section 116 of the Customs Act. At the same Govt. would observe that there is nothing on record that the applicants are intentionally or actively responsible to the said short landing in goods. Hence in interest of justice Govt. would reduce the penalty equivalent the amount of duty that would have been chargeable on the goods short landed or the deficient goods had such goods been imported....
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....,000 C24/30/99 6-6-05 Rs. 3,61,537 9 4. M.T. Coral Star 30-4-95 Propene 15-3-96 3-3-99 3,35,000 C24/31/99 3-6-05 Rs. 1,68,707 8½ 5. M.R. Coral Star 30-1-95 Propene 14-5-96 3-3-99 10,75,000 C24/32/99 6-6-05 Rs. 5,39,668 15½ 6. M.T.LPG/C Lady Elena 8-9-98 Propene 13-5-99 22-6-99 6,00,000 C24/58/99 6-6-05 Rs. 3,13,320 17 7. M.T. Virgo Gas 2-3-96 Propene 1-5-96 22-6-99 1,75,000 C24/59/99 6-6-05 Rs. 88,321 2 8. M.T. Venus Gas 9-4-98 Propene 14-1-99 22-6-99 1,35,000 C24/60/99 6-6-05 Rs. 70,308 9¼ 9. M.T. Spica Gas 19-8-97 Propene 28-1-98 22-6-99 1,75,000 C24/61/99 6-6-05 Rs. 88,393 5½ 10. M.T. Venus Gas 6-2-98 Propene 14-1-99 22-6-99 2,00,000 C24/62/99 6-6-05 Rs. 1,01,959 11¼ 11. M.V. Oravitta 11-10-93 Acid grade Flour-spar 24-4-95 30-11-99 6,75,000 C24/78/2000 3-6-05 Rs. 4,08,666 23½ 9. Most of the cases, the show cause notices were issued within a period of one year and in 2 cases within a few months little over 3 years from the date of arrival of the vessels. Penalty imposed were partially reduced by ....
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.... The Learned Counsel for the petitioner submits that the view of the Bombay High Court has been followed by this Court in its order dated 12-8-2002 in M/s. Wilco & Co. v. Union of India and Others, in W.P. Nos. 9817 & 9818 of 1995 [2003 (151) E.L.T. 49 (Mad.)] and another decision of this Court in J.M. Baxi v. The Government of India, in its order dated 8-2-2016 in Writ Appeal No. 2445 of 2011, [2016 (336) E.L.T. 285 (Mad.)] wherein, the Division Bench of this Court observed as follows :- 16. Insofar as the third ground is concerned, the Learned Counsel for the appellant is right in contending that a delay of about eight years from the date of discharge of the cargo has occurred and a delay of about just less than five years has occurred in passing the order of adjudication on the show cause notice. As we have indicated earlier, the discharge of the cargo took place on 31-7-1992, the show cause notice was issued on 2-3-1995, the reply was sent on 23-5-1995 and the order of adjudication was passed on 7-1-2000. 17. In the order of adjudication dated 7-1-2000, there is nothing to indicate as to what transpired from 23-5-1995 up to 7-1-2000, except for two date....
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....ought to have exercised its powers, and deleted the entire penalty. In other words, the first respondent was satisfied that there is no mens rea on the part of the petitioner. The nature of cargo, Bills of Lading, time taken for completing the discharge, where all reckoned by the first respondent/Government of India and was convinced to hold that the petitioner was not intentionally or actively responsible for the short landing. 32. Therefore, I have no hesitation to hold that the inordinate delay in concluding the adjudication proceedings is unreasonable. Further, the Revisional Authority, Government of India, having found that, no blame can be fastened on the petitioner for intentionally being the cause for the short landing, this is a fit case, where, the entire penalty imposed on the petitioner requires to be vacated. 18. The Learned Counsel for the petitioner also placed reliance on yet another decision of this Court rendered in W.P. No. 24969 of 2004 on 30-7-2019 in the case of Inter-Ocean Shipping (I) Private Limited v. Government of India, Represented by the Joint Secretary and Others. 19. In all these cases, the view taken by the Bombay High Court in Par....
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....ct, 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. Section 32 of the Act provide that no imported goods required to be mentioned under the regulation of an import manifest shall be unloaded at any Customs Station except the permission of the Officer. 35. Under Section 34 of the Act, the imported goods shall not be unloaded from any conveyance except under the supervision of the proper officer. As per the proviso, the Board may give general permission for any goods or class of goods to be unloaded or loaded without the supervision of the proper officer. 36. Under Section 42 of the Act, the person-in-charge of a conveyance which has brought any imported goods shall not cause or permit the conveyance to depart from that custom station until a written order to that effect has been given by the....
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....om of any trade the weight of any bulk cargo inserted in the bill of lading is a weight ascertained or accepted by a third party other than the carrier or the shipper and the fact that the weight is so ascertained or accepted is stated in the bill of lading, then, notwithstanding anything in the Rules, the bill of lading shall not be deemed to be prima facie evidence against the carrier of the receipt of goods of the weight so inserted in the bill of lading, and the accuracy thereof at the time of shipment shall not be deemed to have been guaranteed by the shipper. 25. It modifies the Rules 4 and 5 of Article III, which is reproduced below :- Article III Responsibilities and Liabilities 1. The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to - (a) make the ship seaworthy; (b) properly man, equip and supply the ship, (c) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. 2. Subject to the provisions of Article IV, ....
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....age be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection. In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen; Provided that a suit may be brought after the expiry of the period of one year referred to in this sub-paragraph within a further period of not more than three months as allowed by the Court. In the case of any actual or apprehended loss or damage, the carrier and the receiver shall give all reasonable facilities to each other for inspection and tallying the goods. 7. After the goods are loaded the bill of lading, to be issued by the carrier, master or agent of the carrier to the shipper, shall, if the shipper so demands, be a "shipped" bi....
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....e interpreting certain provisions of the English Carriage of Goods by Sea Act, 1924. Our own Act applies to contracts of carriage of goods outwards from the ports of India. Section 2 states that the rules set out in the Schedule shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in India to any other port whether in or outside India. Though in the appeals before us we are concerned with only contracts of carriage of goods from one Indian port to another Indian port, it is necessary to remember that these rules will often have to be interpreted in the courts of the foreign consignees. That is an additional reason why we should be careful not to attach to the words used in the rules set out in the Schedule to the Act anything more or less than their normal meaning consistent with the context in which they appear and consistent with the scheme of the legislation. 27. Though the provision of the Indian Carriage of Goods by Sea Act, 1925, codifies the Hague Rules, Protocol of Signature, (Brussels, 25 August 1925), it has no application for discharge of imported cargo within India from vessels coming from outsi....
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....bulk : (1) The quantity shown in the Bill of Lading reflected in the Import General Manifest should be prima facie accepted as the cargo on board the vessel brought for unloading at the port of Bombay. (2) In case, the person-in-charge of the ship or his Agent produces the ullage survey report prepared at the Port of loading and certified by an independent Surveyor, then the quantity mentioned in the ullage survey report should be accepted as the current quantity brought by the vessel for unloading. (3) The vessel should be permitted to discharge liquid cargo only after a ullage survey is carried out under the supervision of the Customs Officer and such survey report is signed by the Customs Officer, by the ship owner and the consignee. (4) After the discharge of the liquid cargo from the vessel, a fresh survey should be carried out in the presence of the Customs Officer and this discharge completion survey report should be signed by the Customs Officer, the ship-owner and the consignee. (5) In case of any differences between the bill of lading, quantity....
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.... quantity should be taken as the basis for levy of Customs duty pending provisional assessments [which] may be finalised accordingly. 38. In this case, the import had taken place between 1993 to 1995 as per the chart. There is considerable delay in so far as the determination of short landing. It is not clear that the facts of the present case how the short landing was determined. In so far as the cargo covered by the show cause notices at Serial Nos. 2, 5, 6, 8, 10 & 11 are concerned, there is considerable delay in not only issuing notice but also in adjudication. 39. Further, from the reading of the judgment of this Court in CAG Shipping (India) Pvt. Ltd. v. The Government of India and Others, 2016 SCC OnLine Mad 23645 = 2016 (340) E.L.T. 318 (Mad.), Fluorspar contains moisture to facilitate handling and to reduce dust and therefore presence of high moisture content was recognised. There, the Adjudicating Authority had allowed only 0.5% which is universal accepted principle in Maritime law for all the import cargo. However, considering the nature of the import cargo, there the Court had allowed the tolerance limit at 6.47% according to the parameters published by Mr. ....