9911796707
TMI Blog1984 (1) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... lometres in length. 3. Almost six months after, the petitioners received from the Assistant Collector of Customs a notice which stated that the outturn of the vessel disclosed shortages. The petitioners were called upon to show cause within 15 days why a penalty should not be imposed upon them under Section 116 of the Customs Act, 1962. The quantity short-landed was stated to be 31.846 M.Ts. On 25th May 1978 the petitioners asked the Assistant Collector of Customs for extension of time by one month from 27th May 1978 to reply to the said notice. On 28th September 1978 the Deputy Collector of Customs passed an ex parte order stating that the vessel had arrived from Iran had discharged 3718.274 M.Ts., as against the bill of lading quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty by ullage was meant only for discharging the carrier's liability towards the suppliers and receivers and had nothing to do with the requirements under the Customs Act. The deficiency for Customs purposes was determined by comparing the manifest quantity with the actual discharge quantity. Though the fuel had travelled 17 kilometres by pipeline there was no finding of any possible leakage on record. The discharge through the pipeline and the receipt of the fuel in shore tanks belonging to the importers of the fuel had the full approval of the Customs authorities. The shore tanks had been calibrated and were approved by the Customs authorities. In view of this, the appeal was found to merit no consideration and was rejected. This petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad such goods been exported." For the imposition of penalty under Section 116 the Assistant Collector of Customs must find (a) that the quantity of the goods unloaded is short of the quantity that should be unloaded and (b) that the shortage is not accounted for to his satisfaction. 7. It was submitted by Mr. Venkteswaran, learned Counsel for the petitioners, that, for the purposes of determining whether there was a deficiency, the quantity that should be taken into account was the quantity that was discharged by the vessel and not the quantity which was stored and measured in the shore tanks of the importers of the fuel after the fuel had travelled 17 kilometres through a pipeline over which the petitioners had no control. In the alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned with it. 10. In this view of the matter the orders of the Assistant/Deputy Collector of Customs under Section 116 and the orders in appeal therefrom are quashed and set aside. Each of the matters is remanded to the Assistant or Deputy Collector of Customs for determination of whether the petitioners therein have satisfactorily accounted for the deficiency. In arriving at such determination, the authorities shall take into account the ullage reports submitted by the petitioners. 11. Rules accordingly. No order as to costs. 12. In Writ Petition No. 602 of 1979 the petitioners have furnished a bank guarantee pursuant to an interim order of this court. It shall be kept alive until the order under Section 116 is passed afresh. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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