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TMI Blog1992 (3) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants under S. 116 of the Customs Act, 1962 for alleged short-landing of Cargo at Calcutta by M.V. Jalakendra belonging to the appellants. 2. The vessel, M.V. Jalakendra was chartered by Messrs Azo Export of Bucharest (Rumania) for carriage of fertilizer in bags from Constanza to Indian Ports. A total quantity of 206322 bags of Calcium Ammonium Nitrate was shipped on board of the said vessel at Constanza. The bags were declared by the shipper in the bill of lading as weighing 50.7 Kgs. gross and 50 Kgs. nett each. The packing was of polythene with jute over it. Under the terms of the charter party, the cargo was to be loaded and stowed by the charterer and was to be discharged at the ports of destination by the consignees. The cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport of the Calcutta Port Trust, however, reported short-landing of 4361 bags under Line No. 2. It is alleged by appellants that the out turn report was not correct. In fact, there was no short landing of cargo at Calcutta at all. The Port Trust failed to make a complete tally of the bags that were discharged from the vessel at Calcutta. Of the total number of bags discharged, the Port Trust tallied only 80332 bags which is substantially less than the number of bags acknowledged to have been discharged in the out turn report. The number of bags stated to have been discharged in the out turn report was 83611 bags. It is clear, therefore, that the quantity shown as landed from the vessel in the out turn report was not derived from the landin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he invited our attention to several correspondence which will be discussed by us during the course of orders. 9. The learned J.D.R., Shri B.B. Sarkar contended that the out turn report clearly mentioned that there was a short-landing of 4361 bags of Calcium Ammonium Nitrate. He also contended that the documents which are relied on by the appellants during the course of the arguments are of no avail. He stated that these documents cannot be connected with the bags which were found short-landed as per the orders passed by the authorities below. 10. We have considered the submissions of both sides. The point that arises for our determination is whether the imposition of penalty of Rs. 95,262.00 under Section 116 of the Customs Act, 1962 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods in question were short-landed and in judging the question from that point of view the authorities concerned proceeded on an erroneous basis under Section 116 of the Act. It is true, as I have emphasised before, the out turn report and manifest are the relevant pieces of evidence and are to be taken in conjunction and with other piece of evidence, viz. the survey report, the conduct of the parties, the chemical analysis report and also the fact that there is any other types of goods in the ship. It is nobody s case that there were any other types of goods in the said ship. Therefore, in not so doing, it appears to me that the respondent authorities proceeded on an erroneous view of law, and, on such an erroneous view of law, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnection, our attention was invited to the letter of the Food Corporation of India dated 24-10-1975, which is at Annexure-B to the Appeal Petition. In that letter the Senior Deputy Manager (PO) had submitted addressing the Shed Appraiser, 2-Calcutta Jetty, Customs, Calcutta, that the vessel carried 27972 bags of CAN against Line No. 2, Challan No. GSI 41 dated 9-5-1975 for discharge at Calcutta. Out of 27972 bags F.C.I, took delivery of 22767 bags by rail leaving a balance of 5205 as per Challan quantity. It was also stated that after physical counting at the spot it had been found that 844 original bags in cut and torn condition were lying in the Shed against the balance quantity of 5205 original bags. They were rebagged into 761 bags. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese 3500 bags also relates to Line Number 2. If these 3500 bags are deducted from the total quantity of 4361 bags, then the balance will come to 861 bags. So the total bags short-landed, will come to 861 and on the facts and circumstances of the case, we have to give the benefit of doubt to the appellants in this regard. As per the Survey Report held on 6.11.1975 the Food Corporation of India has taken delivery ofunmanifested excess quantity of 195 bags and if the same is deducted the total number of bags will come to 666. It was contended by the learned Counsel, Shri Roy Mukherjee that there was no short-landing as could be observed from the Daily Discharge Report of F.C.I. Stevadors. It was also stated that the quantity delivered to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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