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TMI Blog1986 (10) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... at :- 3. It is, thus seen that in respect of the same goods there are contesting claimants also, they being the appellants in Appeal No. CD(Cal.) 354/83 and the Appeal No. C-152/85. No doubt Shri J.M. Roy, the Ld. Consultant for the Appellants in Appeal No. CD(Cal.)-354/83 does not admit that the claim of the Appellant in the other Appeal could relate to the goods which is claimed by his Client. This is not a matter that can be gone into at present. 4. It is also to be noted that though the claim in Appeal No. 152/85 is said to relate to the same goods as are the subject matter in Appeal No. 354/83, the Appellants in Appeal No. 354/83 have not been made parties to the Appeal No. 152/85. No doubt, Shri Mukhopadhyay represented that in their appeal the Collector alone could be made Respondent and he relied upon Rule 12 of the CEGAT Procedure Rules to support this contention. But it would be seen that Rule 12 only states that in an Appeal of a Private party the Collector shall be made the Respondent and not that the Collector should alone be made Respondent. Taking into consideration the fact that the Appellants in Appeal No. 354/83 are also contesting Claimants for the goods whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by them from the Steamer Agents is evident from the correspondence exchange with them, their submissions in reply to the show-cause notice and the Steamer Agents submissions before the Addl. Collector. 11. It was, therefore, their contention that they had legally and properly acquired the goods which had been duly cleared out of Customs control on completion of the formalities prescribed by law. Hence no offence had been committed by them and the goods were not liable for confiscation and they were not liable to penalty. 12. It was their contention that the Addl. Collector had not taken all their submissions into account. He had mainly based his finding on the fact that the Port Trust Out-turn Reports showed marks numbers but the Bill of Entry which had been filed on behalf of the Agents showed marks numbers as Nil . It was their contention that there were other relevant particulars such as the number of cartons, the weight of the cartons and the ship s name and rotation No. which were also required to be taken into account by the Addl. Collector (but had not been considered by him). In this connection he would particularly emphasise the breadth and length of the paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il even in those cases where some marks and numbers may be there but may not be readable. It is also shown as nil in those cases where the marks and numbers are there, but do not tally with the marks and numbers shown in the manifest. 17. In support of this contention he would draw attention to the words used in the supplementary out-turn report of the Port Trust in which the words used are cargo landed with marks and no marks not appearing in the manifest below which the word nil is written. It is, therefore, clear that the word nil is used in cases where there are no marks as also in cases in which the marks do not appear in the cargo manifest i.e. do not tally with the marks and numbers appearing in the manifest. It is also clear from the practice of the Port Trust as per the Port Trust manual that the Port Trust used to allow the excess unmanifested cargo to be cleared under wrong/nil marks numbers. 18. It was also their contention that the marks numbers on the cartons in question were not clearly readable and that is why they were taken as nil by the Port Trust and it is well known that the Port Trust Out-turn Report is the basic document and it is on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department s case that the goods seized from the godown of the appellants had been acquired by them illegally and were liable to confiscation, because the appellants have not been able to show that they were legally and properly imported. Their claim that they had purchased them from the steamer agents was not acceptable to the department, because the Port Trust Out-turn reports for Export Champion, Rotation No. 73/80 showed that eight cartons of excess un-manifested cargo had nil marks and numbers. The transport document allowing transport of the goods within the dock area also shows nil marks and numbers. The bill of entry filed by the steamer agents also shows nil marks and numbers. Whereas at the time of search and seizure the Customs officers found that the eight cartons found in the godown of the appellants had marks and numbers as clearly indicated in the search list. The marks show that the goods were made in U.S.A. and the consignee s name was also clearly indicated as United Engineering Syndicate. 23. In view of these basic facts the department considered that this consignment is different from the one which the appellants might have purchased from the steamer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 14 cartons all the six cartons imported vide Export Champion were presumed to have been lost. Similarly, out of eight cartons imported through Export Commerce, two cartons were presumed to have been short landed. But actually they had landed and had somehow found their way in the godown of Shri S.N. Lihala and Shri S.K. Lihala. 32. It was his contention that it was pursuant to his letter that the Customs had seized the goods in the godown of Shri S.N. Lihala and Shri S.K. Lihala. Subsequently, summons were also issued to them in terms of Section 108 of the Customs Act and their statement had also been recorded. However, the department did not give any reply to their letter addressed to the Asstt. Collector with reference to which the action had been initiated against Shri S.N. Lihala and Shri S.K. Lihala. The department also did not issue any show-cause, notice to him and he was not made party to the proceeding against Shri S.N. Lihala and Shri S.K. Lihala. With the result that he did not get any change to prove that the goods in question were his goods. 33. It was under these circumstances that he was compelled to go to the Hon ble High Court to seek its directions. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that the appellants (the Lihalas) are justifiably aggrieved with the order inasmuch as it is apparent that the Addl. Collector has not passed a speaking order and has not taken all the relevant facts into account. We have noted with great concern that the departmental officers did not care to take into account important indicators of identity and particulars which were valuable from the Customs point of view, as well as appellants points of view. As for example, the ship s name, rotation No., weight of colons, length breadth of the materials etc. as pointed out by the learned Counsel for the Lihalas, Shri J.M. Roy. It is really a matter of serious concern that such a Senior Officer as Addl. Collector had also ignored such important aspects. 44. The learned Departmental Representative had already conceded with reference to the submissions of the Counsel for Shri Kashi Nath Panda that the requirements of law and procedure have not been duly taken care of. 45. It is really surprising and indeed painful to observe that even the elementary provisions of law and procedure were not taken care of and such a Senior Officer as Addl. Collector has not applied his mind at all in thi ..... 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