2007 (7) TMI 119 - AT - Customs

Penalty (Customs) penalty were imposed on appellant (vessel agent) on the ground that the cargo discharged by the appellant is less than the BOL which is 1.25% of total quantity Appellant give satisfactory explanation and shortage consider to be normal and penalty set aside

Summary

Issues:
1. Shortfall in the quantity of goods discharged from a vessel compared to the Bills of Lading quantity.
2. Imposition of penalty under Section 116(a) of the Customs Act, 1962.
3. Explanation of the shortage by the Master of the vessel and the vessel agent.
4. Objective assessment of the shortage to determine penalty liability.
5. Tolerance limits for deficiencies in manifested quantities of goods.

Analysis:
The appeal was filed against an Order-in-Original passed by the Commissioner of Customs regarding a shortfall of 532.777 MT in the quantity of Yellow Peas discharged from a vessel compared to the Bills of Lading quantity. The Revenue imposed a penalty under Section 116(a) of the Customs Act, 1962, amounting to Rs. 5,50,305. The appellants, acting as the vessel agent, challenged the order, emphasizing the accuracy of the draft survey conducted to determine the discharged quantity. The obligation of the vessel's Master to explain any shortages after landing the goods as per the Bills of Lading was highlighted during the proceedings.

During the hearing, it was clarified that vessel agents are responsible for satisfactorily explaining any shortages, failing which the Master of the vessel becomes liable for penalties under Section 116(a) of the Customs Act. The assessment of shortage explanation by the Commissioner of Customs should be objective, considering all relevant facts and circumstances. The Customs Act's Section 116 outlines penalties for unaccounted goods, specifying the liability of the person in charge of the conveyance in case of deficiencies.

In the specific case of Yellow Peas cargo, the shortage of 532.777 MT was deemed within the tolerance limit allowed for manifested quantities. The appellants argued that errors in draft surveys are common and cited previous decisions allowing deficiencies up to 2% without penalties. They presented details of the cargo's handling at different ports to justify the shortage, emphasizing that the shortfall was satisfactorily explained. The Tribunal concluded that a 1.25% shortage in bulk cargo is not abnormal and overturned the penalty imposition, ruling in favor of the appellants.

In the final judgment pronounced on 31-7-2007, the Tribunal set aside the impugned order and allowed the appeal with consequential relief, emphasizing the importance of objectively assessing shortages in bulk cargo to determine penalty liability accurately.