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TMI Blog2013 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ription of the cargo as per the Bill of Lading. He further stated that being a liner they are not aware of the quantity of the cargo laden in each container whereas the seals provided at the load port were intact on arrival. The lower authority observed that the applicants have not accounted for 797.37 MTS of MS Steel scrap and 302.29 MTS of MS Plates Ex-stock valued at Rs. 1,58,97,283/- involving a duty of Rs. 26,31,318/- and a show cause notice was issued as to why penalty under Section 116 ibid should not be imposed on them. The applicants cited the case law of Shaw Wallace reported in 1986 (25) E.L.T. 948 to support their stand. The lower authority observed that quantity arrived in the cited case was marginally less whereas in the present case all the containers have been received empty. He held that the steamer agents could not provide a satisfactory explanation for short-landing and is accountable for the declared quantity of the cargo especially when the seals provided by him were used for sealing the containers. The original authority vide said order-in-original imposed a penalty of Rs. 32.00 lakhs under Section 116 of Customs Act, 1962. 3. Aggrieved by the impugned order- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tact on arrival at Chennai port clearly establishes that no goods were stuffed in the 40 containers at the load port and that there was no reason for the applicant to entertain any doubt especially because the importer has paid value to the foreign supplier. The applicant relied upon the Venkataramiah's Law Lexicon to justify their case, which states "the word satisfied is a well know term in the law and is used to connote the vesting of discretionary powers in the authorities to which it refers. They also cited the decision in the case of SG Jaisinghani v. UOI and Others to clarify "Law of the Constitution" in the Tenth Edn., Introduction ex. In support of their case. They also relied upon the GOI Order in case of India Steamship Co. Ltd. reported in 1992 (57) E.L.T. 511 to clarify "the word satisfied" under Section 116 in support of their case. 4.3 They also relied upon the decision in the case of Shaw Wallace & Co. Ltd. v. Asstt. Collector of Customs & Other reported in 1986 (25) E.L.T. 948 (Bombay). The Hon'ble High Court has laid down the guidelines to be followed by the Customs Authorities and Port Trust to decide whether short-landing has taken place or not. The Hon'ble Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted goods to the foreign supplier and that the seals affixed at the load port were found intact on arrival at Chennai port clearly establishes that no goods were stuffed in the 40 containers at the load port and that there was no reason for the applicant to entertain any doubt especially because the importer had paid value to the foreign supplier. 4.5 That in terms of Section 116 of the Customs Act, penalty is imposable in such a case where the goods loaded in conveyance for importation in India are not unloaded or the quantity unloaded is short of the quantity to be unloaded at the destination and if the failure to unload or deficiency is not accounted for to the satisfaction of the Assistant Commissioner of Customs. It is submitted that the applicant have explained in details couples with importers statement and action taken by him for the deficiency. There is no reason for the Joint Commissioner and the Commissioner to say that the applicant have not provided satisfactory cause for the short-landing and to allege that the stand taken by the applicant was an attempt to run away from the legal duty/responsibility. The applicant submits that the Joint Commissioner not exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-appeal. 7. On perusal of records, Government notes that the applicants are the steamer agent who filed IGM No. 15738/2009 as per provision of Section 30 of Custom Act, 1962 in respect of 40 containers of MS steel scrap of quantity 797.370 MTS and 303.29 MTS of MS plates ex-stock valued at Rs. 1,58,97,283/- involving duty of Rs. 26,31,318/-. But on investigation by Dock Intelligence Unit (Container Tracking Cell), on weighment found that entire manifested quantity of 1099.66 MTs of MS plates Ex-stock and MS steel scrap said to be contained in 40 containers was not landed/short-landed and all 40 containers were empty. Original authority after due process of law, vide impugned Order-in-Original No. 13347/2010-MCD, dated 29-10-2010, (F. No. IGM No. 15738/2009-MCD), imposed a penalty of Rs. 32,00,000/- on the applicant steamer agents under Section 116 of Custom Act, 1962, for their failure to satisfactorily account for the not landed or short-landed of above said total manifested quantity of good as stated in the Bill of Lading. In appeal, Commissioner (Appeals) after considering their submissions rejected the appeal. Now they have filed this revision application on the grounds state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer, shall be liable for the fulfillment in respect of the matter in question of all obligations imposed on such person in charge by or under this Act or any law for the time being in force, and to penalties and confiscations which may be incurred in respect of that matter. The said provision of Section 148 makes it clear that such agent shall be liable for fulfillment in respect of matter in question of all obligations imposed on such person in-charge by or under this Act or any law for the time being in force and to penalties and confiscation which may be incurred in respect of that matter. As such steamer agent is liable to penal action under Section 116 ibid in this case matter. 8.3 Regarding the non-landing of entire goods in respect of said 40 empty containers, the issue has been discussed in detail by Commissioner (Appeals) who has held that it not at all possible that master of the vessel did not know the fact of empty container (111 Nos.) loaded in the vessel involving weight of 1000 MTs. The ratio of Bombay High Court judgment in the case of M/s. Shaw Wallace & Co. Ltd. - 1986 (25) E.L.T. 948 (Bom.), cannot be made applicable to this case because in this case totall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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