TaxTMI 
TaxTMI 
2002 (7) TMI 118
X X X X Extracts X X X X
X X X X Extracts X X X X
....etition are as follows : The Petitioners are a company carrying on business as Agents for foreign flag vessels calling at the Port of Bombay. At the material time, the Petitioners were Agents of the foreign flag vessel "PRESIDENT ROOSEVELT". The said vessel called at Bombay in or about the second week of August , 1979 with general cargo in containers, full container load (F.C.L. containers) as well as less than the container load (LCL container) for discharge at Bombay. On arrival of the said vessel, the Petitioners had to file necessary Import General Manifest (IGM) and the vessel commenced discharging her cargo on 12th January, 1979 and completed her discharge of vessels by 16th August, 1979 and sailed from Bombay soon thereafter. Acco....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iving personal hearing to the Petitioners and called upon the Petitioners to show cause as to why penalty under Section 116 of the Customs Act should not be levied on the basis of the outturn report of the Bombay Port Trust. The Petitioners pointed out to the Respondents that as per the order passed in Writ Petition No. 2527 of 1986 it was obligatory on the part of the Petitioners not to hold the Petitioners responsible for the alleged shortlanding merely on the basis of the outturn report. It was pointed out that at the time of unloading of the container from the vessel its seal was intact and that at the time of destuffing of the container much later in the Bombay Port Trust docks if there was no seal, then the Petitioners cannot be held ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s laid down by this Court in Writ Petition No. 1889 of 1986 if at all the liability was to be fastened on the Petitioners, then it was obligatory on the part of the Respondents to adduce evidence to the effect that at the time of discharge of the containers from the vessel the seals were not intact. It was submitted that as per Section 45 read with Section 2(34) of the Customs Act, 1962 it was evident that the Bombay Port Trust was under a statutory obligation to send a copy of the tally sheet to the proper officer, i.e. the officer of the Customs regarding the conditions of containers and discharge from the vessel. It was submitted that the Respondents could not have kept back the tally sheet with them and purported to levy penalty on the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... intact at the time of unloading, the Petitioners are not entitled to any relief in the present petition. 7. Having heard the Counsel on both the sides and after perusing the records placed before us, we are of the view that the order impugned in the petition cannot be sustained at all. This Court by its order dated 4th October, 1986 in Writ Petition No. 2527 of 1986 had set aside similar order passed by the Respondents against the Petitioners wherein the penalty was sought to be levied solely based on the outturn report. When the matter was sought to be remanded it was obligatory on the part of the Respondents to base their claim on any material other than the outturn report. As pointed out by Mr. Gomes, learned Counsel for the Petition....
X X X X Extracts X X X X
X X X X Extracts X X X X
....broken, then the survey report has to be prepared of the contents of such container in the presence of Customs Officer. In the instant case the containers have already been unloaded from vessel and while the containers were lying in the Bombay Port Trust, it was found that the seals were broken. In that event any survey taken after the containers were discharged from the vessel cannot be taken into account and arrive at a conclusion that on the date of discharge of the container from the vessel, the seals were broken. In our opinion the guidelines given by the learned Single judge in the case of Shaw Wallace & Co. Ltd. (supra) would be applicable to the goods which are to be off-loaded from the vessel thereafter and it cannot be made applic....