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TMI Blog2004 (10) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... en of proof regarding short-landing lies with the customs authorities. If doubts persists penalty cannot be imposed. Submission was made that tally sheets showed that 28 packets landed but the consignee declared that he received 43 packets. Outturn report revealed that there was delivery of 43 packets. In the same outturn report, Calcutta Port Trust declared that there was excess of one carton and one packet. The consignee was offered one carton and one packet but he refused to accept it after verification. According to the ship owner there was no shortage at all. If anything happened after unloading, it was not the responsibility of the ship owner. It was contended that there could not be any short-landing when there were two excess landin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 821 bags of fertilizer, the ship owner and the consignee carried out a survey. In the case in hand, the petitioner did not ask for any survey. However, it was conceded that the language of the order under challenge should have been couched in a better manner. However, facts have to be taken into consideration. Facts were taken into consideration while rejecting the revisional application of the petitioner. 5. Mr. Khaitan, in reply, submitted that under Section 116 of the Act it has to be established that there was shortage in the quantity unloaded. When the petitioner did not complain of any short-landing, customs authorities have to prove it. It is an admitted fact that there were goods belonging to other consignees. In paragraph 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 116, the basic fact of short-landing has to be established. In the instant case, in view of the observation and findings in paragraph 5 of the order under challenge, the allegation regarding short-landing was not beyond doubt since imposition of penalty involves proceedings which are quasi-criminal in nature. The principles laid down in the judgment of Union of India and Ors. v. Raja Agencies (supra) are clearly applicable in the facts and circumstances of the case. The relevant portion of the judgment is as under : Levy of penalty involves proceedings which are quasi-criminal in nature. It is now settled law that to establish the charge it is not only necessary to prove the existence of mens rea, but also that the allegations must be p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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