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TMI Blog2015 (5) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... ppened because of natural calamity and there is no mala fide intention on the part of the steamer agent, penalty not to be imposed. Therefore, even though there was a short-landing as per OTR, once duty has been paid on the entire quantity, even assuming that goods have entered into country, it can be said that they have entered after discharging the liability of import duty and penalty under Section 116 ibid not to be imposed. - Decided in favour of appellant with consequential relief - C/21095/2014-SM - Final Order No. 21169/2015 - Dated:- 22-5-2015 - Shri B.S.V. Murthy, Member (T) Shri S.C. Choudhary, Consultant, for the Appellant. Shri Mohd. Yusuf, (AR), for the Respondent. ORDER Appellant is a steamer agent and fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s away from Visakhapatnam Port, because of rough weather, the logs loaded in the ship fell into sea and Out Turn Report confirmed that this was happened because of breaking of the railings and lashing wire by which the logs were tied. There was a report of Master of Vessel also. He reported the accident as soon as the vessel reached at the Port to all concerned including the Customs authority. In view of the fact that short-landing happened because of natural calamity, no penalty could have been levied. He also submits that the importer had paid the entire duty on the quantity loaded in the ship. In these circumstances, he submits that there is no justification for imposition of penalty on the appellant. 5. Learned AR supports the stands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss of timber logs have not been considered nor discussed. 7. Learned consultant relies upon the Apprising Manual of the Customs Department and relevant provisions of Manual in the chapter relating to MCD are reproduced for better appreciation : 7.09 Claim for duty on goods falling overboard during discharge : 1. No claim for duty would be made on the steamer agents If it is established that the missing goods fell into the sea or harbour during the course of discharge, and there is no possibility of their having passed irregularly into consumption. ... 7.11 Adjudication Imposition of penalty under Section 116 of the Customs Act : 3. In determining the amount of penalty leviable, instead of going by the amount of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally observe where duty has already been paid, the refund is time-barred (which is the situation in this case), the adjudicating authority can use discretion. 8. Apparently, in this case, there was a mistake on the part of the steamer agent in not seeking amendment to IGM. However, on considering the facts which show that even though there was a short-landing of 159 pieces, the duty was paid on the entire quantity and therefore, apparently the steamer agent presumed that the matter ended there. The purpose of submission of OTR is to ensure that quantity shown in the IGM is properly accounted for and duty is discharged on every item which is covered in the IGM. The action for short-landing is taken or has to be taken only when duty has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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