1986 (4) TMI 52 - HC - Customs

Penalty - Imposition on short landed cargo- Customs - Goods in transit - Short landing - Dutiability

Summary

Issues Involved:
1. Applicability of Section 116 of the Customs Act, 1962 to Nepal cargo.
2. Procedural fairness in penalty imposition under Section 116.
3. Short-landing and liability of the petitioners.

Issue-wise Detailed Analysis:

1. Applicability of Section 116 of the Customs Act, 1962 to Nepal Cargo:

The primary issue was whether Section 116 of the Customs Act, 1962 applies to goods imported into India for exportation to Nepal, which are exempt from customs duty under a government notification. The petitioners argued that Section 116, which pertains to penalties for short-landed goods, should not apply to duty-exempt Nepal cargo. The court examined the language of Section 116 and relevant exemption notifications, concluding that the section applies to both dutiable and non-dutiable goods. The court emphasized that the penalty under Section 116 is independent of the duty status of the goods and is meant to prevent fraud and ensure accountability. Therefore, the contention that Section 116 does not apply to Nepal cargo was rejected.

2. Procedural Fairness in Penalty Imposition:

The petitioners contended that they were not given adequate opportunity to explain the short-landing before penalties were imposed. In Matter No. 753 of 1982, the petitioner received a show cause notice but did not challenge the short-landing or request a personal hearing. The court held that the procedural requirements were met as the petitioner was given a chance to respond but failed to do so. Similarly, in Matter No. 715 of 1982, the petitioner did not avail the opportunity for a personal hearing and relied solely on the legal objection regarding the applicability of Section 116. The court found that the rules of natural justice were followed and the penalties were lawfully imposed.

3. Short-landing and Liability of the Petitioners:

In each case, the petitioners were penalized for short-landing of goods. In Matter No. 753 of 1982, the short-landing of a case of cigarettes was not contested by the petitioner, who remained silent after initially requesting time to trace the goods. The court upheld the penalty, noting the petitioner's failure to account for the short-landing.

In Matter No. 715 of 1982, the petitioner acknowledged the short-landing but argued that Section 116 did not apply. The court dismissed this argument and upheld the penalty.

In Matter No. 1704 of 1981, the petitioner challenged the survey process and the timing of the survey. The court noted that the petitioner did not raise these objections at the appellate stage and thus could not contest them in the writ petition. The court also clarified that the public notification requiring immediate surveys by steamer agents did not apply to penalty impositions under Section 116.

Conclusion:
The court concluded that Section 116 of the Customs Act, 1962 applies to both dutiable and non-dutiable goods, including Nepal cargo. The penalties were imposed following proper procedures, and the petitioners' objections were either unfounded or procedurally barred. All three writ applications were dismissed, and the interim orders were vacated. The operation of the order was stayed for four weeks upon the petitioners' request.