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TMI Blog2019 (7) TMI 1742X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Steamer Agent for the Ship, named ''M.V. Merini'', (hereinafter, referred to as 'Vessel'), which arrived at the Port of Cuddalore on 13.11.1992. The vessel carried urea in bulk, weighing 30,000 metric tonnes (MTs), under two Bills of Lading. On arrival, a notice of readiness was issued to the consignee, and two draft survey reports were issued, indicating that the vessel had brought the quantity, weighing 29,483.5 MTs and 29.963.5 MTs respectively, as against the quantity mentioned in the Manifest and Bills of Lading. Landing Certificate, dated 19.03.1993, was issued by the Superintendent of Customs, indicating a shortage of 483.739 MTs. This shortage has resulted in imposing penalty of Rs. 30,00,000/- on the petitioner under Section 116 (a) read with Section 148 (2) of the Customs Act, 1962 (hereinafter, referred to as 'the Act') by order, dated 04.08.1999 by the third respondent. On Appeal, this Order was confirmed by the second respondent/Commissioner of Customs, by Order-in- Appeal, dated 31.01.2003. The petitioner, feeling aggrieved, filed a Revision Application under Section 129 DD of the Customs Act, 1962 before the first respondent, Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the vessel was carrying the cargo under Charter Party Terms, in which, loading and discharge was the responsibility of the receivers of the cargo, and if there was any loss/damage, the Carrier or Steamer Agent cannot be held liable. In the instant case, the discharge/delivery operations was conducted by the consignee. It is further submitted that, in terms of Section 5 of Carriage of Goods by Sea Act, the quantity mentioned in the Bills of Lading is not even a prima facie evidence of the cargo loaded in the vessel, and thus, any orders passed in this respect, relying upon the quantity mentioned in the Bills of Lading and the quantity arrived at the weighment point, off the shore, cannot be considered as the correct quantity, discharged by the vessel. 7. It is further submitted that the Cuddalore Port, being an Anchorage Port, without berthing facilities, the cargo, which is discharged by slings in non-standardized and the minimum stitched bags into the barges, would result in loss of cargo, and further loss will occur at the pier point, where, the labourers use hooks to carry the goods, and further loss will occur at the time of storing, which is not the petitioner& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that no liability can be fastened on the petitioner, who is a Steamer Agent of the vessel (M.V. Merinee). 11. Further, it is submitted that, in the Landing Certificate issued by the Superintendent of Customs, dated 19.03.1993, it is mentioned that the discharge was by nonstandardized bags from the vessel, as per the Boat, and the other factors were not considered by the respondents 2 and 3, in a proper perspective before affirming the penalty. So far as the first respondent is concerned, though he came to the conclusion that there is nothing on record that the petitioner has intentionally or actively responsible to the said short landing of the goods, did not grant full relief, but only reduced the penalty equivalent to the amount of duty, that would have been chargeable on the goods not landed or the deficient goods on such goods been imported. Further, there is no specific allegation made in the impugned order that the petitioner's carrier was aware of the weight of the cargo. 12. Mr.V. Sundareswaran, the learned Senior Panel Counsel for the respondents submitted that, in terms of Section 30 of the Act, a person in charge of the vessel, includes the agent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Bangalore) reported in (1996) 82 E.L.T. 204 (Mad), in support of the contention that, if, according to the petitioner, the Import Manifest is incorrect, then, they should have sought for amendment of the same, which, the petitioner did not do, and therefore, the contention raised by the petitioner does not merit consideration. Reliance was placed on the decision of the Hon'ble Division Bench in (Caraval Logistice Pvt. Ltd., Vs. Jt. Secretary) reported in (2016) 338 E.L.T. 266 (DB) Mad with regard to, who is the person in charge, as defined under Section 2 (3) of the Act and the effect of the Import Manifest. On the above grounds, the learned Senior Panel Counsel seeks for dismissal of the Writ Petition. 16. Heard the learned counsel appearing for the parties and perused the materials placed on record. 17. The undisputed facts are that the vessel, ''M.V. Merini", carrying urea in bulk, weighing 30,000 MTs under two Bills of Lading arrived at the Port of Cuddalore on 13.11.1992. The vessel commenced discharge of the cargo on 23.11.1992 and completed the discharge after 2 1/2 months, i.e., on 19.02.1993. A draft survey report was prepared on behalf of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, the exercise of powers under Section 116 of the Customs Act must be undertaken within a reasonable time, and in the said case, the show cause notice was issued beyond the period of limitation of five years from the date of vessel leaving the Port, which was held to be arbitrary and unreasonable. Further, it was pointed out that the period of five years is more than reasonable, as the bond executed by the Agents is for a period of five years. Accordingly, the writ petitioner succeeded before the Court. 20. In Raghuvar (India) Ltd., (supra), the Court pointed out that, any law or stipulation, prescribing a period of limitation to do or not to do a thing after the expiry of period, so stipulated, has the consequence of creation and destruction of rights, and, therefore, must be specifically enacted and prescribed therefor. It is not for the Courts to import any specific period of limitation by implication, where, there is really none, though Courts may always hold when any such exercise of power had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period. 21. In M/s.Wilco & Company (supra), a show cause notice was issued towards shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s should be reasonable period, as the bond executed by the agent is required to be kept alive for a period of five years. The Government of India, in exercise of its revisional powers, followed the decision of various Court and held to the same effect. In the preceding para, the relevant dates have been noted and the time taken between two stages have also been mentioned. 26. The learned Senior Standing Counsel for the Revenue would contend that the show cause notice was issued well within the period of five years from the date of discharge, and therefore, the decisions referred to by the petitioner are distinguishable. One more contention being that, if the steamer agent was of the view that, Import Manifest or Import Report is in any away incorrect or incomplete, they should have taken steps to amend the same. They having not done so, the petitioner should be made to pay penalty. In this regard, the decisions of Hon'ble Division Bench in i) Chowgule Brothers (supra) & ii) Caraval Logistice Pvt. Ltd., (supra) were referred to. 27. The underlying principle in all the decisions is that, though an Authority, exercising power under the statute can do so, and if such an action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of discharge. The facts clearly disclose that the delay is inordinate and arbitrary. 31. Thus, the Revenue cannot seek to distinguish the decisions referred to by the learned counsel for the petitioner, by contending that the show cause notice was issued well within the period of five years from the date of discharge. In my considered view, the time taken for adjudication is what important to be noted, and if the said time is reckoned, it has taken six years for the Authorities to complete the adjudication from the date of discharge, which is found to be unreasonable in all the decisions referred to above. The penalty, which was imposed by the Adjudicating Authority and confirmed by the Appellate Authority was twice the shortage. On revision, the first respondent/Government of India noted that, there is nothing on record to show that the petitioner is intentionally or actively responsible to the said short landing in goods, and having rendered such a finding, the first respondent ought to have exercised its powers, and deleted the entire penalty. In other words, the first respondent was satisfied that there is no mens rea on the part of the petitioner. The nature of cargo, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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