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TMI Blog2009 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... nee and such report should be countersigned by the Customs Officer before discharge of the cargo and such report should be accepted for the purpose of ascertaining the actual cargo unloaded. Concedingly, in this case, the independent survey report, prepared by the carrier and the consignee, is not countersigned by the Customs Officer before discharge of the cargo. Hence, the decisions cited by the learned counsel for the petitioner are of no avail to his case. W.P. dismissed. - 1442 of 2005 - - - Dated:- 17-6-2009 - V. Dhanapalan, J. [Order]. - Challenging the order of the 1st respondent dated 29-10-2004 bearing No. F. No. 380/14/S1/2003-RA passed in Order No. 524/04, the petitioner has filed this writ petition. 2. The case of the petitioner is as under : 2.1 He is the steamer agent for the vessel m.v. "MEGA JAYA", which carried acid grade flourspar to the port of Cuddalore on 6-9-1998 with a manifested quantity of 9612.650 MTs., packed in 8505 bags. The cargo was imported by a consignee, namely, M/s. TANFAC Industries Ltd., Cuddalore. The vessel, on arrival, encountered heavy tides at the outer anchorage where the cargo was discharged into barges provided by the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hort-landing arrived at by the Customs Department. The alleged short landing of 342.964 M.Ts. is only notional and arbitrary and not realistic and that no consignee would admit such losses and therefore the so called shortage is only a paper shortage which is very common in bulk cargo, where weight cannot be properly ascertained at the time of arrival of the vessel. The third respondent without considering their submissions had confirmed that there was a short landing and held that 265.681 M.Ts. was short landed and proceeded to impose a penalty of Rs. 9,90,000/- at twice the amount of import duty payable on the cargo. 2.5 Aggrieved over the said order of the third respondent, the petitioner filed an appeal before the second respondent, who, after verifying the documents, was satisfied that the third respondent had committed an error by imposing penalty on the sole ground that the draft survey report was not countersigned by the customs authorities and, accordingly, by an order dated 23-5-2002 (Document No. 8), had set aside the order of the third respondent holding that the fact that the survey report not being countersigned by the customs authorities would not make the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 M.Ts. resulted in short landing of goods to the tune of 342.964 M.Ts., after excluding the tare weight of the bags at 29.770 M.Ts. The customs duty, on the goods said to have been short landed, amounts to Rs. 5,85,831/-. A show cause notice was issued to the petitioner on 31-8-1999 in terms of Section 116 r/w Section 148 of the Customs Act, 1962. After hearing the petitioner, the adjudicating authority came to a conclusion that the impugned goods were short landed to the extent of 265.681 M.Ts., after allowing the tolerance at the rate of 0.5% i.e. 48.063 M.Ts. and 8.52% of moisture content i.e. 29.220 M.Ts. for which the duty amount was Rs. 4,95,000/-. The adjudicating authority imposed a penalty of Rs. 9,90,000/- under Section 116 r/w Section 148 of the Act, which is equal to double the amount of duty. 3.2 The bill of lading issued at the port of loading is a prima facie document, which has been duly considered by the Department. The draft survey was conducted by the alleged independent surveyor at the time of unloading of cargo at the port of discharge. The Completion Certificate, Draft Survey Report and the statement of facts cannot be relied upon in this case, inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cargo imported being Flourspar and since it contains moisture, it is weighed both as dry and wet quantity and for the purpose of calculation, 8.52% has been calculated as moisture content, but the respondents ought to have taken the entire manifested quantity and not the alleged discharged quantity. In support of his case, the learned counsel for the petitioner has relied on the following : (i) A decision of this court in the case of Shoba Viswanathan v. D.P. Kingsley [1995 (II) CTC 465] "2. ... it is settled law that unless the delay in filing the appeal is condoned, the same cannot be taken on file. Section 3 of the Limitation Act provides that every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The language of the Section is mandatory. Hence, the Court has a duty to consider whether the delay in preferring the appeal can be condoned under Section 5 of the Limitation Act. Only if the delay is condoned, the appeal could be entertained by the Court. 3. In Krishnasami Panikondar v. S.R.M.A.R. Ramasami Chetty and others (34 MLJ 63), the Privy Council held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Deputy Collector, Customs, cannot be sustained... " 6. With regard to the contention that the draft survey was conducted by the Port officer and the report confirming the discharge of entire quantity of 9612.650 was issued, learned counsel for the respondents would submit that the bill of lading issued at the port of loading is a prima facie document and it has been duly considered by the Department. Further, with regard to the contention of the petitioner that the consignee had not filed any civil suit for claiming the short landing of the cargo with the liner, learned counsel would submit that it cannot be construed as a valid reason to state that the goods are not short landed. According to the learned Senior Panel Counsel, the petitioner, as a steamer agent, is solely responsible for any short landing of cargo at the time of discharge, as he is in-charge of conveyance. 7. I have heard the learned counsel on either side, perused the material available on record and also considered the rival submissions. 8. The issues that arise for consideration in this case are : (i) Whether the vessel m.v. "MEGA JAYA", which carried acid grade flourspar to the port of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which may be incurred in respect of that matter." "129DD. Revision by Central Government : (1) The Central Government may, on the application of any person aggrieved by any order passed under Section 128A, where the order is of the nature referred to in the first proviso to sub-section (1) of Section 129A, annul or modify such order : Provided that the Central Government may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees. 1(A) The Commissioner of Customs may, if he is of the opinion that an order passed by the Commissioner (Appeals) under Section 128A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for revision of such order." 10. According to the petitioner, before the cargo was discharged from the vessel, a draft survey was conducted by the Port Officer and he had issued a report dated 18-9-1998, confirming the discharge of the entire quantity of 9612.650 M.Ts., and a completion discharge certificate was also prepared on the said date. 11. In this connection, it is to be see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be liable to a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods. 15. Section 148 provides for liability of agent, as per which, an agent appointed by the person in charge of a conveyance shall be liable for the fulfilment in respect of the matter in question of all obligations imposed on such person in charge and to penalties and confiscations which may be incurred in respect of that matter. 16. As per Section 32, 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 the customs station. In the case on hand, no permission of the proper officer has been obtained for unloading the goods. Had such permission been obtained, the controversy with regard to short landing would not have arisen at all, in which event, the proper officer would have been very much present at the time of unloading the goods. 17. As there was a short landing of cargo to the tune of 265.681 M.Ts., after allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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