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TMI Blog2016 (9) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... o the assessment to ascertain as to whether there is any penalty leviable on the petitioner. Amount of refund of the amount already collected, if any, after assessment, should be duly made with appropriate orders - writ petition allowed - decided in favor of petitioner. - W. P. No. 2340 of 2005 - - - Dated:- 31-8-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr. Dominic S.David For the Respondents : Mr. A. P. Srinivas, SPC ORDER Heard Mr.Dominic S.David, learned counsel for the petitioner and Mr.A.P.Srinivas, learned Senior Central Government standing counsel for the respondents and with their consent, the writ petition itself is taken up for disposal. 2. In this writ petition, correctness of the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.M.T. OF ACIDE GRADE FLOURSPAR FROM THE VESSEL M.V. MERCUREA CIUC ARRIVED AT CUDDALORE PORT ON 05.04.94. 1. Quantity manifested 6348.060 WMT 2. Quantity accounted for as per landing certificate 6110.376 3. Quantity shortlanded 237.684 WMT 4. Less Moisture @ 6.47% 15.212 5. Quantity shortlanded in DMT 222.472 DMT 6. CIF Value of 222.472 DTM @ U.S. $ 81.00 Per DMT U.S.$ 18020.23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. This, according to the Adjudicating Authority, is universal accepted principle in Maritime Law, for which, the Authority has also referred to the order passed by the Government of India. The petitioner preferred an appeal before the Commissioner of Customs and Central Excise (Appeals), Trichy, who had concurred with the Adjudicating Authority. As against that, the petitioner preferred Revision to the first respondent. The Revisional Authority, though was of the opinion that the findings rendered by the Adjudicating Authority as well as the Appellate Authority were correct, yet noted that the petitioner was not acting intentionally or actively in the shortlanding and therefore, he reduced the penalty which was imposed and directed the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of In Re:Spanoceanic Services Pvt.Ltd. [2014 (313) E.L.T. 848 (G.O.I.)]. However, the material, which was subject matter of consideration in the said case, was Ammonium Nitrate. Therefore, in my view, the uniform percentage of tolerance limit cannot be adopted, but, it should be cargo specific. 8. Thus, if the Adjudicating Authority was of the opinion that the adoption of tolerance limit at 6.47% in the show cause notice was incorrect, he should have given reasons as to why such percentage should not have been applied, rather, without doing so, he has straight away adopted the tolerance limit at 0.5% which is incorrect. 9. The Revisional Authority found that the petitioner was not intentionally involved in the short landing, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the decision of the Hon'ble Division Bench of this Court in the case of M/s.A.D.Jeyaveerapandiya Nadar Bros Vs. The Government of India (W.A.No.1101 of 2009, dated 12.04.2010), in which also, this issue as to on which quantity the tolerance limit has to be calculated came up for consideration and the Hon'ble Division Bench held as follows: 4....................... It is thereafter on 31.08.1999 that the show cause notice has been issued. The original authority refers to the deduction of moisture content and the tolerance limit of 0.5% of manifested quantity as the quantity lost and revised the shortlanded quantity as 265.681 metric tonnes. The submission of the learned counsel is that if the deduction of moisture content is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e error is committed by the Adjudicating Authority in not accepting the tolerance limit of 6.47% on the entire manifested quantity and no reasons have been assigned as to why this tolerance limit should not be accepted and why adhoc tolerance limit should be accepted. The experts say the Acide Grade, which shipped routinely in the form of damp filtercake, contains 7% to 10% moisture. Therefore, the Adjudicating Authority, while issuing show cause notice, rightly adopted the tolerance limit at 6.47%. 14. Accordingly, the writ petition is allowed and the impugned orders are set aside. The respondents are directed to adopt the tolerance limit of 6.47% on the entire manifested quantity and redo the assessment to ascertain as to whether there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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