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2020 (3) TMI 1306 - HC - CustomsRe-quantification of penalty imposed under u/s 116 of CA for short landing of goods - It is the contention of the petitioner that the original Authority had wrongly calculated the discharge quantity to arrive at the short landed quantity for the purpose of imposition of penalty under Section 116 of the Customs Act, 1962 - tolerance limit of 1% to .5% was considered - applicability of Indian Carriage of Goods by Sea Act, 1925 - HELD THAT:- Though the provision of the Indian Carriage of Goods by Sea Act, 1925, codifies the Hague Rules, Protocol of Signature, (Brussels, 25 August 1925), it has no application for discharge of imported cargo within India from vessels coming from outside the country - The Hon’ble Supreme Court in East and West Steamship & Co. George v. S.K.R., [1960 (5) TMI 38 - SUPREME COURT], has also noted the Section 2 of the Indian Carriage of Goods by Sea Act, 1925, states that rules set out in the Schedule shall have effect only in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in India to any other port whether in or outside India. Thus, the said Act is not relevant for considering whether the person-in-charge of the conveyance can state that the bill of lading quantities are not binding of vessels/conveyance or its master. Therefore, the arguments of the Learned Counsel for the petitioner on this ground cannot be entertained. Vessel is permitted to discharge liquid cargo only after a ullage survey is carried out under supervision of the Customs Officer and such survey report is signed not only by the Customs officer, but also by the ship-owner or/and the consignee and its agent - After the discharge of the liquid cargo from the vessel, a fresh survey is to be carried out in presence of the Customs Officer. The discharge completion survey report is to be signed by the Customs officer, ship-owner and the consignee or its agent - The difference in the Bill of Lading Quantity or the ullage Survey Report at the Port of loading with the ullage Survey Report at discharge port is to be treated as short landed quantity for the purpose of Section 116 of the Customs Act, 1962. From the reading of the judgment of this Court in CAG Shipping (India) Pvt. Ltd. v. The Government of India and Others, [2016 (9) TMI 619 - MADRAS HIGH COURT] Fluorspar contains moisture to facilitate handling and to reduce dust and therefore presence of high moisture content was recognised. There, the Adjudicating Authority had allowed only 0.5% which is universal accepted principle in Maritime law for all the import cargo. However, considering the nature of the import cargo, there the Court had allowed the tolerance limit at 6.47% according to the parameters published by Mr. Michael Miller, an internationally renowned expert on chemicals who had opined that Acid Grade Fluorspar is shipped routinely in the form of damp Filtercake containing 7% to 10 % moisture. The petitioner is directed to remit the penalty re-determined by the 3rd respondent in respect of the following show cause notices within a period of thirty days from the date of receipt of a copy of this order - Petition allowed in part.
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