9911796707
TMI Blog2009 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... mpletely discharged, a completion discharge certificate dated 18-9-1998 (Document No. 2) was prepared. Based on the inspection conducted by the petitioner, the agent of the consignee, and the master indicated that whatever cargo was loaded had been discharged in full and that there was no cargo remaining on board in the vessel. 2.2 On arrival of the vessel, a joint draft-survey report (Document No. 3) was prepared by all the interested parties, which disclosed that the quantity that was brought to the Port of Cuddalore, namely, 9,612.650 M.Ts. was discharged, as could be seen from the statement of facts (Document No. 4). Moreover, the consignees who had received the cargo had not filed civil suit claiming shortage and, in any event, any such action not taken within one year should be assumed that the consignees had no claim against the carrier or their agents. The so called shortage arrived at is on an approximation and also subject to certain losses arising out of Loss of Board (LOB), Loss at Pier (LOP) and other handling losses at different places, which is the responsibility of the receivers of the cargo. 2.3 He received a show cause notice dated 31-8-1999 (Document No. 5) fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee months. The CEGAT, after verifying the rules, returned the appeal papers, stating that only a revision would lie and the said report was received by the customs department on 11-12-2002. Even after the receipt of the said report, the department chose to file a revision, only after 6-1-2003. Therefore, the Customs Department cannot plead ignorance of the provisions of the Customs Act and state that they had gone to a wrong Forum. 2.7 The Customs Department filed an application to condone the delay of 111 days before the first respondent along with the Revision application. The petitioner was called upon to file its objections and despite the objections made by him for the condonation, the first respondent condoned the delay without giving proper reasons as to how the laches could be justified and proceeded to adjudicate the dispute on merits. Despite the long and unexplained delay in filing the revision application, the first respondent, by the impugned order bearing F. No. 380/14/S1/2003-RA, dated 29-10-2004 (Document No. 9), allowed the revision application only on the ground that the draft survey report was not signed by the customs official, with a modification of imposing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner for the Loss on Board (LOB), loss on Pier (LOP) and other handling lossess and the short landed quantity is arrived at after a careful consideration and a tolerance limit of 0.5% was allowed while adjudicating the issue. 3.4 In addition, the petitioner is having total responsibility in discharging/accounting the cargo; therefore, he cannot turn around and say that the mode of discharge was not in their control. The petitioner has deviated from his responsibility and, as such, is liable for penal action under Section 116 of Customs Act. 3.5 The petitioner had preferred an appeal to the second respondent against the order of the third respondent and the appellate authority, without appreciating the legal and factual position, erroneously set aside the order of the third respondent and, therefore, the Department was constrained to file a revision before the first respondent. The first respondent, after appreciating the factual and legal position, has set aside the order of the second respondent and confirmed the order of the original authority. 4. Learned counsel for the petitioner would submit that 1st and 3rd respondents have not accepted the draft survey report relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of any question of limitation affecting the competance of an appeal. It is pointed out that the admission of an appeal after the period of limitation deprives the respondent of a valuable right, for it puts in peril the finality of the decision in his favour and where such an order is made ex parte, it is open to reconsideration at the respondent's instance." (ii) A decision of the Bombay High Court in the case of Shaw Wallace & Co. Ltd. v. Assistant Collector of Customs & Others reported in 1986 (25) E.L.T. 948 "8 (C). Dry Bulk Cargo : (1) In respect of dry bulk cargo, an independent survey report should be prepared by the carrier and the consignee and such report should be counter-signed by the Customs Officer before discharge of the cargo. Such report should be accepted for the purpose of ascertaining the actual cargo unloaded. (2) The Bombay Port Trust authorities should not issue out turn report on the basis of actual weighment after landing in cases where the survey report is prepared and counter-signed by the Customs Officer, carrier and the consignee. . . . . . In case these guidelines are carried out by all the concerned parties both in its letter and spirit, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove questions, it would be relevant to refer to the following provisions of the Customs Act, 1962 : "2(34): "Proper officer", in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs." "32. imported goods not to be unloaded unless mentioned in import manifest or import report : No imported goods required to be mentioned under the regulations in an import manifest or import report shall, except with the permission of the proper officer, be unloaded at any customs station unless they are specified in such manifest or report for being unloaded at that customs station." "116. Penalty for not accounting for goods : If any goods loaded in a conveyance for importation into India, or any goods transhipped under the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity unloaded is short of the quantity to be unloaded at that destination, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Officer", in relation to any functions to be performed under the Act means, the officer of customs who is assigned those functions by the Board or the Commissioner of Customs. 12. With regard to the contention of the learned counsel for the petitioner that the draft survey report issued by the Port officer and Surveyor, Cuddalore, is a neutral person and statutory authority, and he is an officer authorized by the instrumentality of the State, it is to be stated that except the ipse dixit to that effect, the learned counsel has not proved before this court that the said Port officer is a Proper officer. Further, the contention of the Department is that the person, who conducted draft-survey and prepared the report, is not the proper officer, who is assigned those functions by the Board or the Commissioner of Customs, but he is an independent surveyor of the petitioner and when the report is prepared by such a person, the same should be approved or countersigned by the Proper Officer. So, the contention of the learned counsel for the petitioner is untenable. 13. As regards one more contention that no reason has been whispered anywhere by 1st and 3rd respondents for disbelieving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of duty on the petitioner, he being the agent of the consignee, namely, M/s. TANFAC Industries Ltd., Cuddalore, under Section 116 r/w Section 148 of the Act. 18. Since I have held in the foregoing paragraphs that the independent surveyor is not the Proper officer, the order of the second respondent, passed in the appeal preferred by the petitioner, to the effect that the survey report not being countersigned by the customs authorities would not make the document invalid in law, cannot be countenanced. 19. Hence, the Department, by way of provision under Section 129DD, preferred a revision against the order of the second respondent before the Central Government/first respondent, whereupon the first respondent, by the order impugned, dated 29-10-2004, confirmed the order passed by the third respondent with a modification of imposing penalty equivalent to duty. 20. If it is the contention of the petitioner that there is no justification in condoning the delay on the part of the first respondent in filing the revision by the Department, it is to be stated that it is the discretionary right of the competent revisional authority to assign reasons while condoning the delay. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
