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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 ..... - W.P.No.24969 of 2004 And W.M.P.No.30363 of 2004 - - - Dated:- 30-7-2019 - THE HONOURABLE MR. JUSTICE M.S. RAMESH For the Petitioner : Mr.K.Bijai Sundar For the Respondents : Mr.A.P.Srinivas, SSC ORDER One of the main grounds raised in the present writ petition is on the ground that there is an inordinate delay in passing the adjudication orders. In an identical situation raised by a Steamer Agent before this Court in W.P.No.33139 of 2004, this Court had considered these grounds of lapses by following various decisions and held that the authorities, while exercising their powers under Section 116 of the Customs Act, should complete the adjudication proceedings within a reasonable time, inspite of the fact that the Act does not provide for limitation and thereby held that the adjudication proceedings is unreasonable and the penalty imposed is set aside. The said order reads as follows: 2. The petitioner is 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 Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Customs, who, by Order-in-Appeal, dated 31.01.2003, confirmed the Order-in-Original passed by the third respondent, dated 04.08.1999. On Revision, the first respondent/Revisional Authority, by the impugned order, dated 31.03.2004, while confirming the orders passed by the third and second respondents, granted a partial relief with regard to penalty alone. 5. The main grounds on which, the orders are under challenge are i) delay in adjudication process; ii) The quantity mentioned in the Bills of Lading is not prima facie evidence for the quantity loaded on board the vessel. 6. The learned counsel virtually took me to the Cuddalore Port, and he made a detailed narration of various events, which had taken place after the vessel had anchored in the Port. It is submitted 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/s.Wilco Company Vs. Union of India) in W.P.Nos.9817 and 9818 of 1995) reported in CDJ (2002) MHC 126; v) (M/s. United Spirits Ltd., Vs. Government of India) in W.P.No.33945 of 2007, dated 22.03.2010. vi) (J.M. Baxi and Co. Vs. Government of India) reported in (2016) 340 E.L.T. 316 (Mad), dated 08.02.2016. 10. The learned counsel has referred to the Bill of Lading, and submitted that the condition in the Bill of Lading is clear with all particulars, i.e., weight, measure, marks, numbers, quantity, contents, value etc., as stated by the merchants, but, unknown to the carrier, who undertakes to deliver the goods, as they were actually loaded. Further, neither the weight nor the measure of goods carried in bulk are checked by the Carrier on loading. Therefore, it is submitted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her submitted that, this Court will not normally interfere with the questions of fact, in as to whether there was really short landing of goods or not, etc. The Officials of the Customs Department did not counter sign the draft survey report submitted by the Surveyor of the consignor or consignee, as it did not reflect the true position. The third respondent, while passing the Order-in-Original, dated 04.08.1999, rightly granted 1% tolerance limit, which is 300 MTs, and therefore, the short landing has been reckoned only as 216.5 MTs. Further, the visible shortage occurred on account of pilferage, loss on board, loss on pier, spillage/handling loss due to cyclone etc., have been carefully taken into consideration while issuing the Landing Certificate by the Superintendent of Customs, Cuddalore. 15. The learned Senior Panel Counsel placed reliance on the decision of Hon'ble Division Bench of this Court, in (Chowgule Brothers Vs. Deputy Collector of 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 completely, i.e. 19.02.1993, the show cause notice, dated 09.03.1995 was issued. Though the petitioner submitted reply on 15.04.1995, the order-in-original was passed by the third respondent after nearly four years, i.e., on 04.08.1999. The petitioner preferred Appeal within the period of limitation, but the Appellate Authority/second respondent took four years to pass final orders, i.e., 31.01.2003. Are these proceedings are vitiated on account of unexplained and enormous delay would be the question to be answered. 19. In Parekh Shipping Corporation (supra), the steamer agent contended before the High Court of Bombay that, it is impossible for them to show cause as to which of the goods were short landed 12 years before the date of the show cause notice. The Hon'ble Division Bench pointed out that, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin 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 116 of the Customs Act. 24. In J.M. Baxi and Co. Vs. The Government of India, New Delhi and others), in W.A.No.2445 of 2011, dated 08.02.2016, the vessel completed the offloading on 31.07.1992, and the landing certificate was issued after a period of more than two years had passed and the importer had cleared the cargo i.e., on 30.09.1994, and the Court upheld the claim made by the Steamer Agent in the said case. 25. As pointed out in the aforementioned decisions, the respondents, while exercising the powers under Section 116 of the Customs Act, have to exercise the same within the reasonable period, though the Act does not provide for a limitation, within which, the said power should be exercised. The Courts have consistently held that the period of five years to complete the adjudication proceedings 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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. 30. Thus, from the date of discharge, it has taken 11 years for the matter to attain finality. However, it is yet to attain finality since this Writ Petition has been pending since 2004. The time taken by the first respondent/Revisional Authority cannot be stated to be either unreasonable or suffers from inordinate delay and laches, as it is little over one year only. However, the Court cannot shut its eyes to the delay in adjudication of the show cause notice and the delay in disposing the Appeal Petition. This has taken 10 years from the 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 petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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