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TMI Blog2011 (1) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... Regarding LCL Containers-that if the seal is intact at the time of discharging and de-stuffing of container than the carrier should be responsible for the difference between the manifested quantity and the de-stuffed tally - In the present case, it was a LCL container therefore the Shipping Agent is liable for action under Section 116 of Customs Act, 1962 - Thus, the Revision Application is allowed. - 380/22/SL/2008-RA-CUS - 11/2011-Cus. - Dated:- 21-1-2011 - Shri D.P. Singh, J. Sh. Milin Ruzai Disouza Sen. Legal Manager, for the Assessee. [Order]. This Revision Application has been filed by the Applicant Commissioner of Customs (General), New Customs House, Ballard Estate, Mumbai - 400001 against Order-in-Appeal No. 79/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to be issued within reasonable period which is not correct. In this case the IGM was filed on 19-3-1998 and the Show Cause Notice issued to Shipping Agent on 20-7-1998, i.e. within 5 months of filing IGM. Therefore there is no delay in initiating action under Section 116 of Customs Act, 1962. The Calcutta High Court in Angus Company Ltd. v. Collector of Customs published in 1988 (38) E.L.T. 20 (Cal.) and in Shakti Beverages Ltd. v. Commissioner of Customs, Mumbai, 2003 (153) E.L.T. 445 at PP 450-51 (Tribunal-Mumbai) took the view that when the Show Cause Notice was being issued within the time prescribed, then the fact that final order was passed only after ten years cannot be a reason to set aside the order as there is no limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that the Mumbai Port Trust vide report dated 17-6-2004 (exhibit A) stated that Item No. L-148 pertains to container HJCU 8667970 and as per the container de-stuffing tally sheet No. 0069/02 (Exhibit B) Item No. L-148 was not de-stuffed from the said container. However, the Mumbai Port Trust amended outturn report dated 3-11-1998 (Exhibit C) has confirmed that out of 5 packages, 2 packages were cleared on 27-7-1998 resulting short landing of 3 packages. Thus, the order of the lower authority was based on MBPT container de-stuffing tally sheet and not on MBPT s outturn report as concluded by the Commissioner (Appeals). 3.5 From the copy of the container de-stuffing tally sheet No. 0069/Serial No. 02 at exhibit B it can be seen that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended out term report issued after a gap of 8 months should not be relied upon as pilferage/theft/lors at MBPT cannot be reeled out. 4.4 The finding of the Assistant Commissioner of Customs that Steamer Agent could not submit any satisfactory documentary evidence to account for goods short landed is not correct and burden of proof (after submissions from their side) lies on the Customs in view of below mentioned judgments:- (i) 2003 (162) E.L.T. 88 (Bom) - Forbes Forbes Campbell Co. Ltd. v. Dy. Collector of Customs. (ii) 2003 (162) E.L.T. 1032 (Tri.-Kol.) - Capstan Shipping Estates Ltd. v. Commissioner of Customs (P), W.B. (iii) 2004(163) E.L.T. 145 (Bom.) - Sea Horse Shipping and Ship Management Pvt. Ltd. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether is LCL or FCL which is being disputed and the basic ground/issue to be decided here in is that as to whether the impugned order-in-original from the lower authority is time-barred as it was issued after a lapse of ten years. 8. In reference to above, Government notes that in this case of IGM No. 0799 is dated 19-3-1998 the relevant show-cause-notice was issued to the Steamer Agent on 20-7-1998 i.e. well within six months. Thereafter the Respondent party continued to made submission and after receiving of initial reply, the department scrutinized for documents. These queries/replies were continued and there after Port authorities sent amended out-turn-report dated 3-11-1998. There after processes of personal hearing and concluding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant MbT Out-turn-Report have been relied upon by the applicant which are legal proper. Moreover, for straightway applicability of the cited precedents Government is of the opinion which is guided by the observations of Hon ble Supreme Court in para 10 of the judgement in the case of Escorts Ltd. v. CCE, Delhi-II [2004 (173) E.L.T. 113 (S.C.)] observed, inter alia, that one additional or different fact may make a word of difference between conclusion of two case , and in para 11 further inferred as following :- 11. The following words of Lord Denning in the matter of applying precedents have become iocus dassicus :- Each case depends on its own facts and a dose similarity between one case and another is not enough because even a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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