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TMI Blog1987 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... t. After hearing Counsel for all the parties, we indicated that we were inclined to set aside this order and admit the petition for hearing. All the Counsel then suggested that instead of remitting back the petition before the learned Single Judge for hearing, it would be desirable that the petition itself is heard on merits. By consent of parties, we decided to adopt the course suggested and we informed the parties that if so desired they can file affidavits in support of their respective claims. Accordingly, on behalf of Port Trust, affidavit sworn on November 9, 1987 by H.I. Naik is filed and taken on record. Accordingly, we allow the appeal, set aside the order dated February 3, 1983 passed by the learned Single Judge and issue rule on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods are precious and are requested to be stored either by the consignees or by the ship agents. In the present case, neither the consignees, nor the petitioners had requested the Port Trust authorities to store the goods in shed-lock fast and it is not known how the goods travelled to shed-lock fast. It is also not in dispute that the Port Trust authorities did not prepare any tally sheets while the goods were discharged from the vessel. The petitioners received letter dated February 26, 1981 from the clearing agents pointing out that the possession of 5 kegs out of 14 kegs was secured from the shed-lock fast and the remaining 9 kegs could not be traced by the Port Trust authorities. The Port Trust authorities prepared an out-turn repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished by the Bombay Port Trust, 9 kegs were short-landed and, therefore, the petitioners should account for the goods and failure to do so would lead to imposition of penalty under Section 116 of the Customs Act. On receipt of this notice, the petitioners filed the present petition to challenge the issuance of the show cause notice. Mr. Venkiteswaran, learned Counsel appearing on behalf of the petitioners, submitted that the show cause notice is based only upon the out-turn report prepared by the Bombay Port Trust authorities and this out-turn report was prepared without existence of any tally sheets and shed delivery orders. Mr. Venkiteswaran submits that the entire procedure as regards preparation of tally sheets, out-turn report, et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they were short-landed. It is impossible to accede to this submission because in the first instance, the Port Trust authorities failed to prepare tally sheets and secondly, it is not unusual that the cargo after being discharged from the vessel is pilfered and the Port Trust authorities are unable to take steps to prevent such theft. Indeed, we are surprised to find how 5 kegs delivered to the consignees were kept in the lock-fast. It is not possible for the Port Trust authorities to claim that 9 kegs were short-landed merely because the Port Trust authorities had failed to discharge the duty of preparing the tally sheets and were unable to point out as to where the remaining 9 kegs disappeared. In our judgment, the sole basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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