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TMI Blog2017 (4) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... he vessel arrived at Vizag Sea Port on 04.09.2010. Due to congestion at the port, the inward entry was given only on 14.09.2010. However, the appellant filed advance Bill of Entry (BOE) on 05.09.2010, in order to comply with the customs formalities and to pay duties thereon. 2. On arrival at Vizag sea port the goods were surveyed by a Joint Draught Survey report dated 17.09.2010. Though it was shown that the entire quantity 4400 MTs was unloaded from the vessel, an annexure to the statement of facts of the Draught Survey Report stated there was short landing of goods, in appeal no. 489/2012. In appeal no. 490/2012 there is no such mention in statement of facts. On 14.09.2010 out of charge was issued. From this date onwards, the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as given only on 14.09.2010 due to congestion in the port. The agreement with the supplier was to supply total quantity of 4400 MTs and 10,000 MTs. The Joint Survey was conducted and Statement of Facts was prepared whereby Annexure enclosed to the Statement of Facts mentioned that there is shortage of goods landed. In the case of 4400 MTs (appeal no. 489/2012) in the Annexure a shortage of 200 MTs is noted. In the case of import of 10,000 MTs the certificate itself showed that the quantity landed is only 9900.674 MTs. He submitted that this Joint Survey Report/Statement of Facts is signed by the Steamer Agent of the appellant as well as the Master of the Ship. On 14.09.2010 out of charge order was issued and on the same date the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 900.674 MTs in case of each of the appeals. The weighment later done by the appellant was not under the supervision of the department and therefore the appellant cannot contend that there is short landing of goods. As the appellant did not produce a Custodian Certificate to corraborate the document of weighment certificate the authorities below have rightly rejected the refund claim. 7. I have heard the submissions made before me. In both orders passed by the authorities below, the contention of the appellant that the goods were short landed has not been accepted for the reason that there is no sufficient documents to conclude that the goods have been short landed. The Statement of Facts is a document prepared after Joint Survey in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught survey is conducted. The goods have later been weighed after issue of out of charge and unloading on 14.09.2010 onwards. The goods were weighed and transported and this ended on 28.09.2010/29.09.2010. The very same Joint Survey party has conducted the weighment during transportation of goods also. After such weighment the exact shortage of goods is given by the certificate dated 30.09.2010 by the Joint Survey Party in respect of both appeals. The appellant relies upon the Statement of Facts as well as this weighment certificate to contend that the goods have been short landed. The authorities below have not accepted these documents to be sufficient evidence to conclude that there is short landing of goods. 9. In the Order-in-Original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before them. Even though these documents such as Annexure to the Statements of Facts and weighment certificate have been furnished before the department, as well as been subject of scrutiny at the time of adjudication, till date no action has been proposed or taken against the Steamer Agent. Therefore the strong inference that can be arrived is that these documents are proper documents. From the above discussion, I am able to conclude that there is short landing of goods as stated in the weighment certificate dated 30.09.2010. In view thereof, I hold that the rejection of refund is unjustified. The impugned orders rejecting the refund is set aside. The appeals are allowed with consequential reliefs, if any. ( Order dictated & pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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