9911796707
TMI Blog1990 (6) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... ck, and confirmed the demand of Rs. 1,75,552.74. 2. The brief facts of the case are that the appellant is a Public Limited Company within the meaning of the Companies Act, 1913 having its registered office at Shreeram Bhavan, Tumsar 441,912 Dist. Bhandara, Maharashtra and Charge Chrome plant at Randia, Bhadrack in the State of Orissa. The appellant has established a 100% Export Oriented Undertaking at Randia in Balasore District, Orissa for manufacture of 'Charge Chrome' an item under Ferro Alloys group in terms of the resolution No. 8(15)/78-EP dated 31-12-1980 as amended of the Union Ministry of Commerce. 3. The appellant imported a consignment of 10,000 M.T. of LAM Coke having the specification - (i) Ash content 11.5%, (ii) Volatile ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant to unload the cargo (LAM coke) from the vessel to the Wharf at Paradip Port. The consignment of LAM coke being a cargo under Customs bond, the entire cargo was required to be physically weighed in presence of Customs Officers posted at weighbridge of the Port and required to be dispatched to the factory of the appellant against approved Transit Memos issued under the signature and seal of the said Customs Officer. No removal of LAM coke from the Wharf is possible without the knowledge and approval of Customs Officer and Port authorities. 6. The entire operation of dispatch of cargo (LAM coke) from the Paradip Port head to 100% E.O.U. of the appellant covering a distance of about 180 kms was through road transport engaging 700 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants by the learned Assistant Collector and the A.C. after granting a personal hearing confirmed the demand. The learned Collector of Customs (Appeals) rejected the appeal of the appellant. He held that though some loss can occur due to drawing of moisture content in the coke, it cannot be to the extent involved in the present case. 11. The learned advocate, Sri Sekhar Mukhopadhyay, appearing for the appellant, contended before us that the loss of weight in the LAM coke was due to the evaporation of water content. It is now seen that the quantity of LAM coke dispatched from Japan was 10,000 MT. He also contended that the quantity received at Paradip Port was 10001.400 M.T. which is seen from the draft survey report. But the quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he extent of 2.78%. He stated that in the cases which were relied on by the appellant's learned advocate the loss was negligible and it was below 1%. Therefore, he contended that those decisions are not applicable to the facts of this case. He also drew our attention to the terms of the contract entered into between the appellant and their suppliers Mitsubishi Corporation of Japan. He drew our attention to clause 5 of the above contract at page 24 of the paper book. It was stated therein that the quantity shall be taken as final by the vessel's draft survey report at the loading port issued by the Japan Marine Surveyors. It was therefore contended that the draft survey report had shown the quantity as 10,000 MT of LAM coke, and that should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. As far as the case reported in 1985 (21) E.L.T.881 it was his contention that the quantity of oil evaporated was very negligible compared to the quantity involved in this case. 16. As far as the decision of the Special Bench is concerned, it was his contention that in that case the shortage was 0.344%, whereas in this case the shortage is 2.78%. Therefore, he distinguished that case from the facts of this case. 17. We have heard both the sides in detail. It is no doubt true that in the cases relied on by the learned advocate for the appellants, the shortage was found to be less than the shortage which had occurred in this case. But the principles enunciated in those decisions are to be applied to the facts of this case. In the case re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the quantity found short was pilfered or was clandestinely removed by the party, they are entitled for the benefit of Section 23 of the Customs Act. 18. Applying the above principles to the facts of this case, it is clearly seen that the appellant had ultimately received a quantity of 9718.380 MT. This quantity was received and warehoused in C.C.P. Randia of the appellant's factory. This is clear from the letter addressed to the learned Assistant Collector by the Officer-in-charge of Customs and Central Excise by virtue of his letter dated 16-1-1984 in letter No. Cus/26/33/84. This letter clearly shows that though a quantity of 9722.580 MT was removed, only a quantity of 9718.380 MT was received and warehoused at Randia. Therefore, there w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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