TaxTMI 
TaxTMI 
2020 (3) TMI 1306
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....t. Secondly there is nothing on record show that the 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....
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.... Propene 27-12-96 24-2-99 25,000 C24/29/99 6-6-05 Rs. 12,724 35¼ 3. M.T. Coral Star 13-6-95 Propene 14-3-96 3-3-99 7,20,000 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 ....
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.... Customs, 1995 (80) E.L.T. 781. 15. The Court further held that the bond should not be kept alive for all time to come and must be limited for a duration of five years from the date of execution. The Court therefore held that the show cause notices issued by the Asstt. Collector of Customs, Manifest Clearance Department could not be sustained. 16. 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....
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..... The penalty, which was imposed by the Adjudicating Authority and confirmed by the Appellate Authority was twice the shortage. On revision, the first respondent/Government of India noted that, there is nothing on record to show that the petitioner is intentionally or actively responsible to the said short landing in goods, and having rendered such a finding, the first respondent 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 peti....
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....ay 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. 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 supervis....
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....ty imposed under the above provision, I shall deal with the provisions of Indian Carriage of Goods by Sea Act, 1925. The Indian Carriage of Goods by Sea Act, 1925 was enacted in the background of International conference on Maritime law held at Brussels. The Statement of object to the said Act states that it recognise a long standing demand. Section 6 of the Act reads as under :- 6. Modification of Rules 4 and 5 of Article III in relation to bulk cargoes. - Whereunder the custom 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....
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....gainst all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper. 6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage 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 ....
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.... to an Act like the present which is not intended to codify the English law, but is the result (as expressed in the Act) of an international conference intended to unify certain rules relating to bills of lading. It will be remembered that the Act only applies to contracts of carriage of goods outwards from ports of the United Kingdom : and the rules will often have to be interpreted in the courts of the foreign consignees. For the purpose of uniformity it is therefore important that the courts should apply themselves to the consideration only of the words used without any predilection for the former law...." 13. The House of Lords was in that case 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 I....
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....ons 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. 31. The Bombay High Court in Shaw Wallace and Co.'s case (supra) had devised a procedure to be adopted in the case of unloading of liquid cargo. As per the decision, the methods to be followed are as follows :- (A) Liquid Cargo in 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 sh....
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.... person-in-charge of the conveyance or its agent is responsible for short landing under Section 116 of the Customs Act, 1962. From the facts and circumstances of the present case, it is noticed that there is no survey report prepared as per the guidelines given in the above judgment of the Bombay High Court. It therefore appears that while allowing the unloading of the import cargo, the Customs officer had failed to follow the above procedure. 37. The method prescribed therein has also been later incorporated by the Central Board of Indirect Taxes in their Circular No. 96/2002, dated 27-12-2002. It has been clarified that in the case of all bulk liquid cargo imports, whether for home consumption or for warehousing, the show tank receipt 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 notic....