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TMI Blog2018 (3) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... and if such an action has the effect of disturbing rights of a citizen, it should be done within a reasonable time, even if period of limitation is not stipulated under the relevant statute. What is required time would depend upon the facts and circumstances of each case. Thus, bearing the legal principle in mind, it is absolutely necessary to examine the factual matrix of the case. In the cases on hand, though cargo was completely discharged on 19.02.1993, it took two years for the Department to issue show cause notice, (i.e. on 19.03.1995). The petitioner appears to have been prompt in responding to the show cause notice by submitting reply, dated 15.04.1995, and nothing happened thereafter for four years and the order-in-original was passed on 04.08.1999. Immediately thereafter, the petitioner preferred Appeal to the second respondent/Appellate Authority, which was rejected only after four years, i.e., 31.01.2003. The petitioner's Revision Petition, which was filed within the limitation, took one year, to be disposed of by the first respondent, by order, dated 31.03.2004. Only saving grace being that the penalty was reduced. The inordinate delay in concluding the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nchorage Port, and no berthing facility is available in Cuddalore. The vessel commenced discharge of the cargo on 23.11.1992, and the same was completed on 19.02.1993. On behalf of the petitioner, a draft Survey Report was issued on 22.02.1993, indicating discharge of 29,483 MTs of cargo. On behalf of the Shipper, a draft Survey Report was issued on the very same date, indicating discharge of 29.963.50 MTs of cargo. The Landing Certificate issued by the Superintendent of Customs Department, dated 19.03.1993, confirms the Survey Reports, indicating short landing of 483.739 MTs of cargo. 4. It is submitted that, discharge of the cargo was completed during February, 1993, however, a show cause notice was issued after a period of two years, i.e. on 09.03.1995, proposing to impose penalty on the petitioner for the shortage of cargo. The petitioner submitted their reply, dated 15.04.1995, and the show cause notice was not adjudicated immediately, and Order-in-Original was passed by the third respondent/Joint Commissioner on 04.08.1999, i.e. four years after the date of issuance of the show cause notice. The petitioner preferred an Appeal to the second respondent/Commissioner of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are various other factors, which would lead to shortage. 9. By referring to the decision of the Hon'ble Division Bench of this Court, in (Union of India Vs. Tatvani Shipping Co.) reported in (1998) Law Weekly 16, it is submitted that, in case of short landing, the period of sailing of the vessel, the date of completion of discharge of the cargo, etc., have to be immediately looked into, and in such case, the draft survey report must be the relevant document to fix the quantity discharged, and not the Landing Certificate. It is further submitted that, there is a huge delay in passing the adjudication order by the first respondent/Revisoinal Authority, viz., period of six years, and such a long delay will vitiate the entire proceedings. In support of such contention, reliance was placed on the following decisions:- i) (Parekh Shipping Corporation Vs. The Assistant Collector of Customs, Bombay and another) in W.P.No.528 of 1985; ii) (Shaw Wallace and Co. Ltd., Vs. Assistant Collector of Customs and others) reported in (1986) 25 E.L.T. 948. iii) [Collector of Central Excise, Jaipur Vs. Raghuvar (India) Ltd.,] reported in (2000) 118 E.L.T. 311 (SC). iv) (M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duties and responsibilities on the part of the Carrier or the Agent. Therefore, the petitioner cannot be wriggled out of their responsibilities. Any contract, which is contrary to the statutory provisions, is not enforceable. The impugned orders have been passed after affording opportunity to the petitioner, including the opportunity of being heard in person. 13. It is further submitted that the contention of the learned counsel for the petitioner that the adjudication should have been completed within a period of five years from the date of discharge of the cargo is not tenable, as there is no period of limitation, prescribed under the provisions of the Act. In the instant case, the import took place in November, 1992 (23.11.1992) and the show cause notice for short landing was issued in March, 1995 (09.03.1995) and the same is well within time. Section 5 of the Carriage of Goods by Sea Act cannot be pressed into service, as, only the provisions of the Customs Act would govern the Authorities. 14. It is further submitted that, this Court will not normally interfere with the questions of fact, as to whether there was really short landing of goods or not, etc. The Officials of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survey reports of the petitioner and shipper, indicating short landing of 483.739 mts of cargo. On 09.03.1995, the Assistant Collector, Cuddalore, issued a show cause notice, proposing to impose penalty of ₹ 34,05,093/- for the short landing. The petitioner submitted a reply on 15.04.1995, after which, the order-in-original was passed by the third respondent, dated 04.08.1999, imposing penalty of ₹ 30,00,000/-. The petitioner preferred an Appeal before the second respondent within the period of limitation and the Appeal was dismissed, by order, dated 31.01.2003. Immediately thereafter, the petitioner filed Revision before the first respondent, which was disposed of, by order, dated 31.03.2004, granting partial relief to the petitioner, by reducing the penalty to ₹ 14,55,556.56. 18. The sheet anchor of the submission made by the learned counsel for the petitioner is by contending that, the enormous unexplained delay in concluding the proceedings will vitiate the same and the impugned orders are liable to be set aside. In the preceding para, the relevant dates have been noted, from which, it is seen that after two years from the date of discharge of the cargo co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was accepted by the Court and it was held that the Authority has to exercise powers within a reasonable period, and, what would be the reasonable, would depend upon the facts of each case and whenever question regarding the inordinate delay was in issue, it would be open to the assessee to contend that it was bad on the ground of delay. 22. In M/s. United Spirits Ltd., (supra), a show cause notice was issued after a gap of 8 1/2 years. The Court, taking note of the earlier decision, allowed the Writ Petition and quashed the proceeding on the ground of unreasonable delay. 23. The first respondent/Revisional Authority, in exercise of his powers under Section 129 (D) (D) of the Act, in M/s. Shipping Corporation of India, in Order No.501 to 504 of 2000, dated 27.09.2000, allowed the Revisions, as the proceedings were delayed for more than a period of five years and relied upon the earlier decision passed by the Government, wherein, it had been held that, adjudication proceedings would have to be completed within the five years from the date, the Ocean going vessel called at the Port or that the bond binding the agents should be current while imposing the penalty under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mentioned earlier, the cargo was a bulk urea, weighing 30,000 MTs and the vessel came to the Port at Cuddalore, which is an anchorage port. The discharge of the cargo commenced on 23.11.1992 and it has taken 2 1/2 months for the vessel to be completely discharged, i.e., 19.02.1993. The landing certificate was issued after nearly 1 month, 19.03.1993, indicating short landing of 483.739 mts. The petitioner, being the steamer agent, was required to execute a bond and the bond to be kept alive for a period of five years. The Courts have held that, if adjudication process is completed within the period of five years, it would be reasonable, as the Agent cannot be directed to endlessly keep the bond alive. 29. In the cases on hand, though cargo was completely discharged on 19.02.1993, it took two years for the Department to issue show cause notice, (i.e. on 19.03.1995). The petitioner appears to have been prompt in responding to the show cause notice by submitting reply, dated 15.04.1995, and nothing happened thereafter for four years and the order-in-original was passed on 04.08.1999. Immediately thereafter, the petitioner preferred Appeal to the second respondent/Appellate Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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