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2019 (7) TMI 1742 - HC - CustomsPenalty u/s 116 of CA - Inordinate delay in adjudication process - quantity mentioned in the Bills of Lading is not prima facie evidence for the quantity loaded on board the vessel - HELD THAT - In an identical situation raised by a Steamer Agent before this Court in M/S. TRANSWORLD SHIPPING SERVICES PVT. LTD. VERSUS THE GOVERNMENT OF INDIA, THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEALS) , THE JOINT COMMISSIONER OF CUSTOMS 2018 (3) TMI 283 - MADRAS HIGH COURT , this Court had considered these grounds of lapses by following various decisions and held that the authorities, while exercising their powers under Section 116 of the Customs Act, should complete the adjudication proceedings within a reasonable time, inspite of the fact that the Act does not provide for limitation and thereby held that the adjudication proceedings is unreasonable and the penalty imposed is set aside. The decision in the mentioned order is followed - petition allowed.
Issues Involved:
1. Delay in adjudication process. 2. Prima facie evidence of quantity loaded on board the vessel. Detailed Analysis: 1. Delay in Adjudication Process: The petitioner, a Steamer Agent for the vessel "M.V. Merini," challenged the penalty imposed due to the inordinate delay in passing adjudication orders. The vessel arrived at the Port of Cuddalore on 13.11.1992, and the cargo discharge was completed on 19.02.1993. A show cause notice was issued on 09.03.1995, two years after the discharge was completed. The petitioner responded promptly, but the Order-in-Original was passed only on 04.08.1999, four years later. The appeal was dismissed on 31.01.2003, and the revision application was partially allowed on 31.03.2004, reducing the penalty. The court referred to several precedents, including Parekh Shipping Corporation, Raghuvar (India) Ltd., M/s. Wilco & Company, and M/s. United Spirits Ltd., which emphasized that adjudication proceedings must be completed within a reasonable time, typically five years. The court noted that the delay of six years from the date of discharge to the completion of adjudication was unreasonable and arbitrary. The court held that the delay vitiated the proceedings, and the penalty imposed was set aside. 2. Prima Facie Evidence of Quantity Loaded on Board the Vessel: The petitioner argued that the quantity mentioned in the Bills of Lading is not prima facie evidence of the quantity loaded on board the vessel. The vessel carried urea in bulk, and the discharge was conducted by the consignee under Charter Party Terms. The petitioner contended that the discharge operations, conducted using non-standardized bags and slings, resulted in cargo loss, for which the Carrier or Steamer Agent could not be held liable. The court referred to Section 5 of the Carriage of Goods by Sea Act, which states that the quantity mentioned in the Bills of Lading is not prima facie evidence of the cargo loaded. The court also considered the Landing Certificate issued by the Superintendent of Customs, which indicated a short landing of 483.739 MTs. The petitioner argued that the Landing Certificate could not be the basis for concluding a shortage, as various factors could lead to cargo loss. The court noted that the Revisional Authority found no evidence that the petitioner intentionally or actively caused the short landing. The court held that the Revisional Authority should have deleted the entire penalty, given the absence of mens rea. Consequently, the court quashed the impugned order and the consequential order regarding the reduction of the penalty. Conclusion: The court allowed the writ petition, quashing the impugned order and the consequential order, and closed the connected miscellaneous petition. The court followed the earlier decision in an identical case, emphasizing the necessity of completing adjudication proceedings within a reasonable time and recognizing the limitations of using Bills of Lading as prima facie evidence of the quantity loaded on board.
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