2005 (6) TMI 50 - CGOVT - Customs

Summary

Issues:
1. Short-landing of goods reported in IGM No. 1290, dated 18-5-1996.
2. Appeal against the order-in-original by the Commissioner (Appeals).
3. Grounds for filing Revision Application.
4. Failure to appreciate facts by the Commissioner of Customs (Appeals).
5. Obligation to prove short-landing from the supplier side.
6. Compliance with guidelines for FCL containers under Section 116 of the Customs Act, 1962.

Analysis:
1. The case involved the short-landing of goods reported in IGM No. 1290, dated 18-5-1996. The steamer agent, M/s. IAL Shipping Agency, initially faced a Show Cause Notice under Section 116 of the Customs Act, 1962, regarding the short-landing issue. However, it was later established that the short-shipped cargo had subsequently arrived and was cleared in full by another vessel, M/s. VANESA. The adjudicating authority dropped the proceedings against the steamer agent, concluding that there was no short-landing based on documentary evidence.

2. An appeal was filed against the order-in-original before the Commissioner (Appeals), who set aside the original order and ruled in favor of the department's appeal. This decision led to the filing of a Revision Application by M/s. IAL Shipping Agency, citing various grounds for challenging the Commissioner's decision.

3. The main grounds for filing the Revision Application included the Commissioner's failure to appreciate that the container was discharged with the original seal intact, as per the Mumbai port trust's tally sheet. Additionally, it was argued that there was no loss to revenue due to the alleged short-landing, as the duty refunded for the short-fall was repaid upon the subsequent arrival of the consignment.

4. The Commissioner of Customs (Appeals) was criticized in the Revision Application for not acknowledging that there was no short-landing and for holding the applicants responsible for proving the absence of short-landing from the supplier side. The applicants argued that the Commissioner erred in his assessment of the situation.

5. The issue of proving short-landing from the supplier side was highlighted in the Revision Application, emphasizing that the obligation to provide evidence in this regard was unjustly placed on the applicants. The applicants contended that the duty refunded due to short-fall was repaid upon the subsequent arrival of the consignment.

6. The judgment referred to guidelines laid down by the Hon'ble Bombay High Court regarding FCL containers. It was noted that when a full container load is unloaded with the seal intact, the vessel owner should not be held responsible for any short-landing or be liable to pay a penalty. The Government found no merit in the Commissioner's decision and set it aside based on these guidelines, providing consequential relief to the applicant.