9911796707
TMI Blog1994 (4) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... are the steamer agents. 2. After hearing both the sides the operative portion of the order viz. `Appeal dismissed was pronounced in the open court with detailed order to follow. 3. The learned Senior Advocate for the appellants pleaded that the goods in question were contained in a package which was found broke open in the vessel and the entire contents had been pilfered. He pleaded that after this pilferage was discovered the appellants addressed a letter to the Stevedores dated 18-12-1989 pointing out to them that while their (Stevedores) labourers discharging the cargo, broke open one Vizag case loaded at Hamburg and stolen all the contents of the case and the fact had been brought to the notice of the Foreman and further stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of law and order existing in the Madras harbour. He referred us to the affidavits filed by one Shri Balagangadhar Vaikunthrao Nilkund, Chief Executive of the Indian National Shipowners Association, and also the affidavit filed by one Shri Sambhu Nath Roy, Executive Director of the appellants company, in support of the plea that the goods had been pilfered. These affidavits are said to be filed as additional evidence in support of the appellants plea before us. We observe filing of such affidavits at this late stage, when the matter is in appeal before us and when no specific verifiable facts relatable to the event with which we are concerned are contained in the affidavits, cannot be entertained. However, the appellants plea in regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t unloaded from the vessel. He pleaded this would bring the appellants case within the purview of Section 116 of the Customs Act. He pleaded the pilferage could be even due to the complicity of the appellants own crew and in any case it was the responsibility of the appellants to ensure that the goods carried by them were unloaded and they should have taken adequate precautions and made necessary arrangements for safeguarding the vessel and the cargo. He further pointed out that the penalty levied under Section 116 is compensatory in nature to compensate for the loss of duty in case the goods which were required to be unloaded were not unloaded and cleared through the Customs and also to ensure that the steamer agents carried out their re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants also apparently have not pursued the matter further for any compensation etc. from the Stevedores. It was only after a lapse of 4 months that they proceeded to write to the Detective Inspector of Police, M1 Police Station, by a letter about the pilferage having taken place from their vessel. The appellants do no appear to have followed up on this complaint and the learned Advocate for the appellants has not been able to show us anything from record as to the outcome of the complaint to the Police. The appellants have taken the whole matter in a very routine manner and to us it appears as if the appellants themselves were not convinced about where the goods disappeared and in what manner, as otherwise they would have been diligent enoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ped under the provisions of this Act, to a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been imported; (b) ............................." A reading of this Section clearly shows that strict liability has been cast on the carrier to account for the goods carried by him and even where the quantity unloaded is short of the quantity carried by him the penalty can be levied on him. When the goods are pilfered, obviously the quantity carried by the carrier is not unloaded and in view of the clear wording of this Section, the carrier becomes liable to penalty subject to the limits laid down in the Section 116. The plea of pilf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been accounted for the purpose of Section 116. In the present case admittedly the goods were not unloaded from the vessel and the only plea is that of pilferage having taken place on board the vessel. The learned lower authority has rightly held the appellants to be liable to penalty. The appellants plea that the ship was in the Customs area and within the jurisdiction of Customs and Port Trust authority and any loss of goods occurring on board the vessel could not be held to be on their account. We observe that the appellants are labouring under a misconception that the appellants liability ceases as soon as they are within the Customs area. Section 116 clearly lays down the liability of the carrier of the goods in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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