9911796707
TMI Blog1985 (12) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... Shipping Co. Pvt. Ltd. filed an application to bring them on record as appellants as they are successors in interest of M/s. Transworld Shippping Services. Their application was allowed. 3. The Deputy Collector of Customs, MCD on the basis of outturn reports of the Bombay Port Trust that there was shortlanding in respect of item Nos. 2,13,14,24,38 and 54, issued a show cause notice dated 23.9.1980 to M/s. Transworld Shipping Services to account for the goods reported to be shortlanded and also to show cause why action should not be taken against them under Section 116 of the Customs Act, 1962. M/s. Transworld Shipping Services submitted their explanations. The Deputy Collector, on consideration of the explanation, offered by M/s. Transwo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n BPT Landing remarks certificate. 7. In the order, the Deputy Collector has stated that show cause notice was issued on the basis of the outturn reports of the BPT but in the schedule to his order, he had specifically mentioned survey shortage against item No. 2. Shri Pal did not produce the steamer s survey report. The appellants however had produced the insurance survey report dated 18th October, 1979. This report shows that the goods landed on 12-7-1979. The application for survey was made on 26.9.1979 and survey was held on 27-9-1979. In the opinion of the surveyors the shortage could have been due to rough handling and possible pilferage. The survey report indicates that the goods did not land. Having regard to the inordinate delay, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant on the other hand, contended that from the endorsement on the duplicate copy of Bill of Entry, it is seen that what had been bonded was only 174 drums. There was thus a shortage of 66 drums. It is in respect of these 66 drums penalty had been levied under Section 116. Shri Pal also referred to the other endorsement contained namely regarding the direction issued for checking. It is seen that only 5% of the checking was ordered. Therefore it could be said that all the drums had not been checked. This document by itself does not support the contention of the appellants that 240 drums had landed. Shri Sheth relied on the BPT s letter dated 18-8-1979 addressed to the consignees and copy to the Inspector of Police, Yellow Gate Police Station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and taken delivery in full. Shri Sheth also relied upon a letter dated 1-1-1980 of the BPT. In this letter, it was stated that out of 11 packages 3 cases are lying in Shed No. 138 and remaining 8 packages are not traceable at present for delivery. Shri Sheth urged, according to BPT letter of 1-1-1980 the remaining 8 packages are not traceable that implies that all 11 packages landed and in the said circumstances, the Deputy Collector was not justified in levying a penalty of Rs. 23,827/-. Shri Pal appearing for the Respondent Collector, however, contended the shortage noticed in respect of this item is only 5 cases and the BPT had issued a shortlanding certificate dated 23-1-1980 which is subsequent to the letter referred to by Shri Sheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, we understand, was under time charter to Contship SL, Switzerland. We have studied all the documents concerned and thoroughly investigated this letter and in our own opinion this consignment was never shipped as stated and that this is due to the theft and/or pilferage ......... The consignment must therefore be considered as shortshipped." 11. The Contship UK Ltd. by their letter dated 17-6-1979 addressed to Transworld Shipping Services confirmed shortshipment. Shri Sheth relying on the above undisputed correspondence contended that there was unimpeachable evidence to establish shortshipment and therefore no penalty could be levied under Section 116. 12. Shri Pal on the other hand contended the Bill of Lading as well as IGM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer is satisfied that the manifest is in any way incorrect and that there was no fradulent intention. Just because the appellants did not get the IGM or Bill of Lading amended, no penalty, in our opinion, can be imposed under Section 116 of the Customs Act when the appellants are able to establish shortshipment by documentary evidence of unimpeachable character and which are anterior to the landing of the goods. The letters of the foreign agents are anterior to the date of landing that their genuineness are not challenged. We therefore accept the contention of Shri Sheth that imposition of Rs. 6,29,970/- against Item 38 in the circumstances was unjustified and unwarranted. We accordingly set aside the penalty imposed against Item 38. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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