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TMI Blog1989 (11) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29-11-1988. However, under para 3 of the aforesaid Public Notice, it has been stipulated that import of Cloves and Cinnamon/Cassia by eligible importers shall not be permitted under OGL except to the extent of irrevocable letters of credit already opened and established before the date of this Public Notice, for which shipments are made within a period of 90 days from the date of this Public Notice. In the case of the appellants, no L/C has been opened and established before the shipment of the goods. The Customs house is reported to have received certain information about the correctness of the dates of shipment mentioned in the Bs/L and made enquiries from the Steamer Agents, Bombay, who after making inquiries from the Shipping Lines at HongKong informed the Customs authorities that the goods were actually loaded on board the vessel only on 19-12-1988 and not on 28-11-1988 as shown as the loading date on the B/L. On the basis of this confirmation, from the Steamer Agents, adjudication proceedings were initiated, which ultimately resulted in the order of confiscation and imposition of penalty. The present appeal is against the aforesaid order. 3. Shri Nankani, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of adjudication. Only after the adjudication, when they approached the Steamer Agents, they got the copy of the Correction Advice. Hence, they cannot be expected to be aware of the fact that the goods were loaded on board only on 12-12-1988, in the absence of any communication to that effect. They have been under the bona fide impression that the goods had been loaded on 28-11-1988, as per the date on the B/L. Moreover, they have submitted the B/E for warehousing. If there had been any mala fides on their part, they would have rushed to take the clearance of the goods. The very fact that they have submitted a B/E for warehousing, indicates that they were not ware of any manipulation on the date of B/L. He also took us through the provisions of Rule 3 of the Schedule of Rules relating to the Bs/L in the (The Indian). Carriage of Goods by Sea Act, 1925 and submitted that after receiving the goods into his charge, the carrier or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper, a bill of lading showing the marks and number of packages, the order and condition of the goods. In this case they also produced a certificate from M/s. Onward Cargo S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re cleared by the very same Customs house accepting the B/L without questioning the date of B/L. The reason given by the Addl. Collector with regard to the previous releases of 2 consignments, which have arrived by the same vessel, is that they were covered by the L/C and hence B/L was accepted. If the case of the department is that the date on the B/L has been fabricated at the instance of the appellants, similar objection is also called for in regard to the other 2 consignments, which is not the case here. He also pointed out that they had applied to the Ministry of Agriculture for the requisite permission as early as on 28-8-1988 in respect of the impugned imports, for which they have placed order, and the permission was also issued by the Ministry of Agriculture as early as on 26-10-1988. This clearly indicates their bona fide in getting the cassia under OGL and they were expected to know about the change in the Policy as early as on 29-9-1988. He pleaded that since no mala fides are established, even if it is held that the goods are liable for confiscation, the imposition of penalty is totally unjust and the redemption fine to the extent of 50% of the value of the goods is unc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1988. In the context of the aforesaid admitted facts, the questions that are required to be decided can be identified as follows : (i) Whether 28-11-1988 being the date of issue of B/L can be taken as the date of shipment, or 19-12-1988 being the date of loading of the goods on board the vessel is to be taken as the date of shipment; (ii) Whether the original wrong stamping of loading the goods on board the vessel showing the date as 28-11-1988 was at the instance of the appellants, and whether the appellants deliberately produced the anti-dated B/L for the purpose of availing clearance under OGL. 8. With regard to the question at sr. No. (i) above, the point can be further narrowed down to the interpretation of para 82 read with para 86 of the Handbook of Procedures. As per para 86, the validity of import licence is decided with reference to the date of actual shipment/despatch of the goods from the supplying country and not the date of arrival of the goods at an Indian Port. Para 82 thereof indicates as below: In the case of shipments made by sea, this will be the date on the Bill of Lading, From a reading of para 86, it is evident that the validity of the licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter receiving the goods into his charge, the carrier or the master or agent of the carrier shall issue a B/L to the shipper on being demanded and such a B/L shall be prima facie evidence of the receipt by the carrier of the goods. 11. Rule 7 reads as below: After the goods are loaded, the bill of lading to be issued by the carrier, master or agent of the carrier, to the shipper shall, if the shipper so demands, be a shipped" bill of lading, provided, that if the shipper shall have previously taken up any document of title to such goods, he shall surrender the same as against the issue of the shipped bill of lading, but at the option of carrier, such document of title may be noted at the port of shipment by the carrier, master or agent with the name or names of the ship or ships upon which the goods have been shipped and the date or dates of shipment, and when so noted the same shall for the purpose of this Article be deemed to constitute a shipped bill of lading". 12. On a plain reading of the Rule 7, it is evident that at the option of the carrier, document of title obtained by the shipper previously in terms of Rule 3 of the said Rules, can be endorsed at the Port of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermined with regard to the actual shipment and can not be with reference to the date of issue of B/L, when the goods were left in the custody of the warehouse of the carrier, even without vessels waiting for loading anywhere nearby. 14. In view of the position, we reject the argument of Shri Nankani to the effect that the date of issue of B/L viz. 28-11-1988, should be taken as the date of shipment. The admitted position is that the goods have been loaded on 19-12-1988 much after the issue of the Public Notice and therefore the goods cannot be allowed under OGL but only under a valid licence. Since it is not the case of the appellants that they had opened the L/C the question of considering the shipment having taken place, within a period of 90 days does not arise. We, therefore, hold that the goods are liable for confiscation. 15. Now coming to the second question viz. whether there was a deliberate attempt on the part of the appellants to present an anti-dated B/L, we find that there is no worthwhile evidence presented by the department to show that there had been a deliberate attempt on the part of the appellants to present an anti-dated B/L. Even the document, on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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