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TMI Blog2013 (11) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... of short landing but is more appropriately to be considered a case of short shipment. Based on such facts and considering the decisions of the High Courts cited by the Counsel especially that in Shaw Wallace & Co. Ld (1986 (7) TMI 106 - HIGH COURT OF JUDICATURE AT BOMBAY) the impugned order passed against the appellant is not maintainable - Decided in favour of assessee. - Appeal No.C/S/40318/2013 & C/40383/2013 - FINAL ORDER No.40571/2013 - Dated:- 23-10-2013 - Shri P.K. Das and Shri Mathew John, J. For the Appellant : Shri V. Aravamudan, Advocate For the Respondent : Ms. Indira Sisupal, AC (AR) JUDGEMENT Per Mathew John; 1. When the stay petition in this appeal came up for hearing on31-07-2013, the Tribunal consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho stuffed the goods cheated him. The supplier promised to make good the loss caused to the importers on account of advance remittance made. Some compensatory payments also were made to the importers to compensate the advance payment made for the goods. 3. A show cause notice dt. 05-12-2011 was issued proposing to levy penalty on the appellant under section 116 of the Customs Act. The SCN also proposed penalty against the five importers proposing penalty on them under section 112 of the Customs Act. Further a penalty was also proposed on Shri Madhukant Agarwal who introduced the supplier to the importers. On adjudication of the SCN, 364.545 MTs of Broken Roof Tiles and 54.21 MTs of Heavy Melting Scrap were absolutely confiscated under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r -not checked by carrier - carrier not responsible (See clause 14) 5. In the case of the impugned 150 containers also each of the Bills of Lading contained such clause. The appellant was not aware that the goods declared and the actual goods were different. The appellant had not verified the weight of the containers because there is no such practice and consequently they were not aware of the discrepancy. His argument is that Revenue has not brought forward any evidence to show that the appellant was aware of mis-declaration of the contents of these 150 containers. 6. Further, the learned advocate submits that in a situation where the importers themselves accepted that this is a case where importers were cheated by the supplier of goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Ltd. Vs Food Corporation of India- AIR 1983 Mad 105. In the former case it was held that shipping lines cannot be held responsible for shortages in cargo so long as the containers were delivered with seals intact. The decision in the case of Thakur Shipping Company (supra) was in respect of a consignment of rice and involved slack bags and consequent shortage detected at the port of arrival. In the case also the Hon. High Court absolved the lines of any liability to pay damages to the consignee. Observations in para 33 of the order is relied upon which is reproduced below: 33. Thus, a review of the reported cases and the ratio laid down therein clearly goes to show that the statement in the bills of lading regarding the nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is that if a bill of lading contained a disclaimer clause, it will not have effect in so far as the number of bags, tins etc. are consigned, ass no mistake can be made by the master of a vessel about those particulars. But in so far as the weight, contents and quality are concerned, the disclaimer clause will certainly operate and in such a situation, it will be for the shipper or consignor to prove by adequate evidence that the particulars regarding weight contents etc. entered in the bill of lading represent the correct weight and the exact quantity of the goods which are loaded on board the ship. 8. While the decision in the case of Shaw Wallace Co. Ltd. (supra) deals directly on the issue of penalty under section 116 of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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