9911796707
TMI Blog2010 (1) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 9-7-2003 that as per ullage report, the quantity was 27198.480 MT and the shortage within 1% of the B/L quantity of 27224.060m MTs. and allowable as per Customs Act, 1962. An order was passed on 9-12-2003 and imposed a penalty of Rs. 1,00,000/- vide order-in-original No. 114/03 dated 16-12-2003 but that order on an appeal filed by applicant was disposed of by the Commissioner (Appeals) vide order no. Kol/Cus/98/CKP/04, dated 6-4-2004 by way of remand with the direction to pass a proper and reasoned order in accordance with the provision of Law, particularly taking into account the instruction of C.B.E. & C. The impugned order is an outcome of the earlier remand order. 2.1 In the impugned order the adjudicating authority has observed that short landed quantity was 25.580 MT and Load port quantity certificate was not submitted along with their letter dated 9-7-2003 in reply to the show cause notice. The same was submitted after a long gap of four months which appeared to be an after thought. At the time of claiming the refund, load port certificate was also not submitted. It is observed that there is not much dispute regarding the quantity of the goods in view of the quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overseas inspection agency. The authority doubted the authenticity of the load port quantity certificate which was submitted after a long gap and held that submission of false documents is a punishable offence u/s 132 of the C.A. '62. A penalty of Rs. 1,00,000/- (Rupees One lakh only) was imposed on the appellant for the short landing). 3. On having been aggrieved by the above order-in-original the Applicant preferred an appeal before the jurisdictional Commissioner of Customs (Appeal) who upheld the order-in-original on merits as per his order-in-Appeal, the operative part of which is reproduced below for ready reference : ''.......that it is an admitted position of the case that whatever is the short landing quantity as per load port certificate or ullage report, the same is within one percent of the consignment. The provision of ocean loss allows upto one percent loss in transit due to evaporation, transit loss etc. In term of circular no. 55/33/66-Cus.-IV, dated 3-2-1967 ocean loss allowance is 1% on liquid cargo imported for India. Circular no. 96/2002-Cus., dated 27-12-02 is also related to assessment of bulk liquid cargo on the basis of shore tank report. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the form of the Note of Protest lodged by the Master recording the ascertained short shipment of 21.475 metric tons; as determined on the basis of the Load Port Ullage Report; 4.5 Whether the Assistant Commissioner of Customs was right, notwithstanding the satisfactory accountal of 21.475 metric tons (as short-shipment), by documents of evidential value, in proceeding to impose penalty on the Applicants for the axiomatic shortlanding of 25.580 metric tons; 4.6 Whether by reason of satisfactory accountal of 21.475 metric tons on account of short shipment, the Assistant Commissioner of Customs erred in not treating the differential quantity of 4.115 metric tons involving a duty of Rs. 12,063/- only as deficient/short landed under Section 116 of the Customs Act, 1962; 4.7 Whether in the circumstances of the case the penalty of Rs. 1,00,000/- was exorbitant and highly inflated; 4.8 Whether the Assistant Commissioner was right in refusing to extend the customary Ocean Loss Allowance of 1% to the consignment under reference by terming the consignment as semi-solid and not volatile (notwithstanding its certification to the contrary by qualified and licensed Surv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssments made in the Bill of Entry and for calculation of alleged shortage Bill of Landing quantity (of 27224 - 060 M.T.) and quantity actually loaded on board (of 27202 - 595 M.T.) as per recorded ullages actually ascertained as per a letter of protest by master of the Vessel dated 12-5-2001 thus shortage of 0.79% only. Therefore difference between the load port Ullage quantity (27202 - 595 M.T.) and discharge port Ullage quantity (27198 - 480 M.T.) would work out to be just 0.015%. Further assuming but not admitting the correctness of B/L quantity with discharge port Ullage quantity the shortage would be 0.09%. All these are within 1% of permissible ocean loss. 9. The Respondent Commissioner (Appeals) (as well as original adjudicating authority) have replied upon the documents submitted by importer/CHA with their refund claim of Rs. 74,986-00 for short landing of 25,580 M.T. of Neptha which were initial B/L, B/E and certificate of origin with P. Invoice having load port as 27224-060. On the point of allowing 1% transit/ocean loss the Respondent authorities analyzed the chemical composition and possible (semi-solid not liquid) physical state of the impugned goods, inferred (d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
