1983 (9) TMI 198 - AT - Customs

Summary

Issues:
1. Shortage of imported consignment of Orthoxylene.
2. Determination of shortage by customs authorities based on shore tank measurement.
3. Discrepancy in quantity found in ship's tank and storage tank.
4. Liability of the appellant under Section 116 of the Customs Act, 1962.
5. Procedure for determining unloading quantity of mineral oil.
6. Acceptable method for determining quantity of discharge.

Analysis:

1. The appeal was filed against the Order-in-appeal passed by the Collector of Customs (Appeals) Bombay, upholding the original order of the Deputy Collector of Customs, Oil Unit, Bombay, regarding the shortage of 20.056 M.T. in the imported consignment of Orthoxylene. The appellants were penalized under Section 116 of the Customs Act, 1962, for the unaccounted quantity.

2. The appellant contended that there was no shortage if ocean loss was considered, as per surveys by independent surveyors. The Deputy Collector increased ocean loss from 1% to 1.3%, imposing a penalty. The appellant argued that the liability under Section 116 should be based on the quantity found by independent surveyors, suggesting the difference could be due to leakage in the pipeline or oil left behind.

3. The Departmental representative argued against the possibility of leakage or intermediate loss, citing survey reports that accounted for the total quantity received in the storage tank. The loss was determined based on the quantity in the shore tank, which was deemed accurate by the authorities.

4. The Tribunal analyzed the procedure for discharging mineral oil from the ship to the storage tank through pipelines. The report by surveyors detailed the process of discharge and gauging the storage tanks. The appellant's contention that the difference in quantity was due to leakage or leftover oil in the pipeline was refuted based on the discharge procedure.

5. It was established that accurate measurement of oil in the ship's tank was challenging when the ship was moving. The Tribunal referred to previous judgments emphasizing the importance of measuring the storage tank quantity for determining the landed quantities of oil accurately, dismissing other methods like ullage survey on board the ship.

6. The Tribunal concluded that the shore tank measurement was the acceptable method for determining the quantity of discharge in the case of mineral oil. Considering the procedure followed and the objective method of measurement, the appeal was dismissed for lacking merit.