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TMI Blog1986 (8) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... A hastened back to Bombay some time in December 1969. Since it was not possible for m.v. LUKITA to return to Colombo, the Agents decided that the goods in- m.v. LUKITA should be transhipped to another vessel which would then sail to Colombo. 3. As usual, m.v. LUKITA carried a list of the cargo with which she was sailing. Part of that cargo has been as mentioned above, discharged at Colombo and considerable part still remained on the ship when she arrived at Bombay in December 1969. The remaining cargo was discharged at Bombay, but the Master of the ship instead of delivering to the Port Authorities document correctly reflecting the cargo which was being discharged for transhipment to Colombo handed over the import manifest which included not only the cargo that was discharged at Bombay for transhipment but also the cargo which had been discharged at Colombo earlier. On a physical verification therefore it was noticed that the cargo that was actually discharged for transhipment fell short of the quantity of the cargo mentioned in the import manifest. 4. The petitioners were called upon to show cause as to why action under Section 116 of the Customs Act should not be taken against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act no shortfall in the goods discharged at Bombay Port. Mr. Korde says that m.v. LUKITA had originally intended to discharge goods at Colombo, that due to unforeseen circumstances, she could discharge only half of the cargo at Colombo and that she had to sail back to Bombay - all these are facts which are not disputed as indeed, he said, they could not be disputed. That the said ship also discharged goods again at Bombay is also accepted by the respondents, but it must also be borne in mind that all the cargo that was discharged at Bombay was cargo meant for Colombo its destination was Colombo, in fact the goods were intended to be discharged at Colombo initially, but due to certain unforeseen circumstances, the goods had to go back and forth from Colombo to Bombay. At no point of time it has been alleged that the goods which were discharged at Bombay or the goods mentioned in the import manifest carried by the ship m.v. LUKITA were to be discharged at any place other than Colombo. 9. In these circumstances it was easy, says Mr. Korde, for the Customs Authorities to compare the various documents which were produced for their perusal and by making a proper correlation of the vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in India; or (b) if the quantity unloaded is short of the quantity to be unloaded at that destination; III. the ensuing provisions of Section 116 will become applicable. It is important to notice that what is required by Section 116 of the Customs Act is the unloading of the goods at a destination in India to the extent to which the documents accompanying the goods require them to be unloaded in India. The section further says that if they are not unloaded in India or if the goods are short-loaded in Inuia, then alone the penal provisions of Section 116 would come into play. The crucial words are: "not unloaded at their place of destination in India" or "if the quantity unloaded in short of the quantity to be unloaded at the destination". The words "that destination" necessarily refer to the place of destination in India referred to in the earlier part of this section. It is therefore clear that the act of unloading or the act of short-loading must be at a place of destination, which place of destination must necessarily be again in India. If the destination of the goods is somewhere other than India, obviously their not loading or their short-loading in a place in India i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es where for one reason or the other the goods are loaded or unloaded. 16. Mr. Bulchandani, however, insists that Section 116 refers to the goods transhipped under the provisions of this Act and therefore it is necessary to refer to the provisions of Section 54 of the Customs Act. Indeed it is necessary to do so. But if one notices the provisions of Section 54 it will be, in my opinion, easy to see that the said section envisages transhipment of cargo to domestic ports as well as to international ports. Section 54(1) states that where any goods imported into a customs port or customs airport are intended for transhipment, a bill of transhipment shall be presented to the proper officers in the prescribed form. Sub-section (2) deals with the transhipment of goods, to any port outside India, whereas sub-section (3) refers to goods imported into a customs port but whose transhipment is with the object of despatching the same to any port within India. 17. When Section 116 of the Customs Act talks of goods transhipped under the provisions of this Act not being unloaded or being short-loaded at a place of destination in India, it necessarily refers to the transhipment that takes place u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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