9911796707
TMI Blog2006 (5) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellants M/s. Natvar Parikh Industries, Visakhapatnam are the Agents for the vessel MV George that arrived at Visakhapatnam on 5-3-1996. According to the Import General Manifest (IGM), the vessel was supposed to carry 3152 pieces of Baked Anodes weighing 3811.092 MT. When the goods were landed in the Visakhapatnam Port, Tally sheet was prepared. According to the Tally Sheet, there was short landing of 64 pieces. As regards the weight, it was actually 3860 MT, which is in fact more than the manifested weight by 48.908 MT. After four months, Out-Turn Report was issued by the Porters. According to the Out-Turn Report, the shortage was 56 pieces. The matter was adjudicated by the original authority for levy of penalty under Section 116 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts that have not been furnished by the appellants and copies of which have not even been furnished to the appellants. (ii) The Adjudicating Authority erred in placing reliance on the Survey Report issued by SGS India Ltd. The said report is not binding on the appellant, as the appellant is not a party to the same and no notice prior to the survey being conducted was issued to the appellant. The appellant did not have the benefit of even perusing a copy of the same. The Adjudicating Authority, based on such report, has concluded that at the time of landing of the cargo, there was a shortage. (iii) The Tally sheets issued by the Port Trust reflects that the entire cargo of anodes has been discharged from the vessels to the shore. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. Collector of Customs (Appeals) - 1989 (43) E.L.T. 36 (Cal.) wherein it is held that penalty being penal, all relevant evidence should be considered by the Customs authorities and is not imposable mechanically merely on the basis of difference in measurement given in bill of lading and in customs survey report. Further, he cited CEGAT s decision in Tata Engineering Locomotive Co. Ltd. v. Collector of Customs - 1991 (56) E.L.T. 812 (Tribunal) wherein it is held that penalty is not imposable unless one acted dishonestly or contumaciously or with deliberate or distinct object of breach of law. Further reliance was placed on this Bench s decision in the case of Bata India Ltd. v. CCE, Bangalore - 2001 (131) E.L.T. 62 (Tri.-Bang.) wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handed over to the custodian and each packet accounted to airway bill in conformity with cargo manifest, hence, till such time cargo is under the possession and control of carrier airlines, only the person in charge of the aircraft and not the custodian responsible for keeping safety of the goods and to account for any loss. Further, he stated that the Tribunal in the case of P O Nedlloyd (India) Ltd. v. CC, Chennai - 2002 (148) E.L.T. 1206 (Tri.-Chennai) has held that Steamer Agents were responsible for the shortages noticed and duty liability cannot be fastened on the custodian of the goods. 6. We have gone through the records of the case carefully. In this case, the Tally Sheets indicate that the weight of the goods landed is much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge of the cargo and in this case they indicated a short landing of 64 pieces. The Steamer Agents themselves admitted that they were delivered 8 pieces over and above the tally sheet quantity. Thus the actual short landing as per tally sheet also works out to 56 pieces. The discrepancy in weight recorded while tallying is due to the fact that the weight of a piece was taken as 1.25 MT by the Port Trust while as per BL it was only 1.209 MT. This is a clear error and the argument of the Steamer Agents on the basis of this error that there is an excess quantity merits rejection. The above finding of the Commissioner is well reasoned for establishing the shortage of 56 pieces. He has also satisfactorily explained the excess weight of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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