Home Case Index All Cases Customs Customs + HC Customs - 2019 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (12) TMI 1448 - HC - CustomsRemission of duty - import of 50,000 bags of Soda Ash - short receipt of quantity or not - applicability of Section 23 of the Customs Act, 1962 - Levy of Penalty u/s 116 of CA - HELD THAT:- In the present case, the custody of the imported goods was with the Tuticorin Port Trust which is constituted under the provisions of the Major Port Trust Act, 1963. Tuticorin Port Trust was required to keep a record of such goods and send a copy thereof to the proper Officer of the customs - There is a categorical finding in O.I.O. No. 4/97, dated 16-4-1997 of the Assistant Commissioner while rejecting the claim for remission of duty of the importer that a proper tally could not be made during the completion of discharge from the vessel as the cargo was dumped due to labour refusing to stack the cargo property into the slings in view of the nature of the cargo. He has further observed that both the Port Trust Certificate and the survey report of M/s. Peirce Leslie, neither show that the entire cargo was not received by the Tuticorin Port Trust. Thus, [there] is no evidence of short landing. Remission of customs duty was allowed by the Appellate Commissioner to the importer on account of short delivery of the goods and not on account of the short landing of the goods. Therefore, there is no nexus between the alleged short landing and short receipt - In this case, the importers had produced a certificate dated 29-2-1996 of Lloyd’s Agents after filing a refund claim on 26-12-1996. In this case, no short landing was noticed by the Customs Department when the goods were discharged at the Tuticorin Port Trust. There is no evidence on record to conclude there short landing. On the other hand, the goods were discharged at the Tuticorin Port. However, after they were discharged, the aforesaid goods were delivered to the importer filed a refund claim on 27-4-1996. The short landing was to be ascertained then and there as and when the imported goods were discharged from the vessel and were transferred to the Port Trust - Therefore, unless there was a report of the surveyors or any other report of the custodian of the goods namely the Tuticorin Port Trust certifying that there were short landing, a steamer or its agent cannot be held liable merely because remission of customs duty was allowed to the importers under Section 23 of the Act. Invocation of section 116 of Customs Act - HELD THAT:- Section 116 of the Act applies only if any goods loaded in a conveyance for importation into India are not unloaded at the place of destination in India or where there is a failure to unload and the goods are not accounted for to the satisfaction of the Assistant Collector of Customs. Only under those circumstances, the person in charge of the conveyance shall be liable to a penalty. Further, invocation of Section 116 of the Customs Act is not dependent on the outcome of the application for remission of customs duty of an importer - If there was indeed short landing, the authorities ought to have initiated proceedings independent irrespective of the application for remission of Customs duty under the provisions of the Customs Act, 1962. Therefore, invocation of Section 116 of the Customs Act, 1962 long after 9 to 10 years of the actual import and clearance of the goods by the importer cannot be countenanced. The impugned order of the 1st respondent seeking to justify levy of penalty on the petitioner under Section 116 of the Customs Act, 1962 cannot be sustained and is therefore liable to be quashed - Petition allowed - decided in favor of petitioner.
|