TMI Blog2011 (3) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... before the 1st respondent at Annexures M, M1 to M5 and also to quash the letters dated 15-6-2004 at Annexure G and 28-6-2004 at Annexure H of respondent 4 and 5 demanding penalty and also to issue a writ directing the respondents to refund the amount of penalty paid with interest thereon and for such other relief. 2. Petitioner is a company incorporated under the Companies Act of 1956 and entered into an agreement with the Indian Oil Corporation Ltd., during the year 1993 and 1994 for assisting the Oil Corporation on arrival of its vessels at New Mangalore Port in filing cargo declaration, shifting of vessel etc. According the petitioner, he is not liable to pay any duty and it is the principal who is the owner of the vessel, liable to pay the duty if any and, he is only an agent. During the years 1994 and 1995, on six occasions, Indian Oil Corporation had imported oil from Marmagoa Port to New Mangalore Port. As per the ullage survey, the quantity of the cargo was found to be less then the quantity mentioned in the cargo declaration. As such, petitioner sought for amendment of the declaration. Based on the same, duty was calculated and levied on the amended quantities and v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer, the person incharge of conveyance or his agent shall be liable to pay the penalty and the petitioner could not justify for short landed cargo. It is further stated, when the impugned orders are passed after affording sufficient opportunity and after due application of mind, it does not call for interference much less the question of delay also does not arise. 5. Heard the counsel representing the parties. 6. The learned Counsel appearing for the petitioner has relied upon the following decisions : (1) CCE, Jaipur v. Raghuvar (India) Ltd. - 2000 (118) E.L.T. 311 (S.C.) (2) E.C. Bose Co. Pvt. Ltd. v. Union of India - 1992 (58) E.L.T. 432 (3) Parekh Shipping Corpn v. AC of Customs - 1995 (80) E.L.T. 781 (4) Wilco Company v. Union of India - 2003 (151) E.L.T. 49 (Mad.) (5) Akbar Badruddin Jiwani v. Collr of Customs - 1990 (47) E.L.T. 161 (S.C.) (6) Reckitt Colman of India Ltd., v. CCE, - 1996 (88) E.L.T. 641 (7) SACI Allied Products Ltd., U.P. v. CCE, Meerut - (2005) 7 SCC 159 = 2005 (183) E.L.T. 226 (S.C.) (8) Khemka and Co. (Agencies) Pvt. Ltd., v. State of Maharashtra - A.I.R. 1975 S.C. 148 (9) CIT v. Mcdowell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the petitioner s counsel in the case of E.C. Bose Company Pvt. Ltd. v. Union of India - 1992 (58) E.L.T. 432, the Calcutta High Court has held, with reference to short landing of goods and imposition of penalty wherein mishandling of the cargo during uploading resulted in torn bags and a large quantity of sugar spilling over in hold of vessel that, unexplained delay of seven years in issuing show cause notice proposing to impose penalty was not proper. 10. In the case of Parekh Shipping Corporation v. Asst. Collector of Customs - 1995 (80) E.L.T. 781 (Bom.), the issuance of the show cause notice for short landing was after twelve year after the date of vessel leaving the port held and the Division Bench of the Bombay High Court has held, as per S.116 of the Customs Act, 1962, power has to be exercised within a reasonable time. It has also observed, the Bond executed should also be for a duration of five years time which is reasonable and action should be taken with in that period. 11. In the case of Collector of Central Excise, Jaipur v. Raghuvar (India) Ltd. - 2000 (118) E.L.T. 311 (S.C.), the Apex Court has held that it is not for the Court to import any specific pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice is served under sub-section (1), shall determine the amount of duty or interest due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (2A) ... (2B) .... (2C) ..... S.116 : Penalty for not accounting for goods : If any goods loaded in a conveyance for importation into India, or any goods transhipped under the provision of this Act or coastal goods carried in a conveyance, are not uploaded at their place of destination in India, or if the quantity uploaded is short of the quantity to be unloaded at the destination, and if the failure to unload or the deficiency is not accounted for the satisfaction of the assistant Commissioner of Customs or Deputy Commissioner of Customs, the person-in-charge of the conveyance shall be liable (a) in the case of goods loaded in a conveyance for importation into India or goods transhipped under the provision of this Act, to a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such been imported; (b) in the case of coastal goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was once again reconsidered for de novo adjudication. In that process, there was delay also. However, the initial delay of six years has been properly explained. Ultimately, the order has been confirmed at the government level. The amount of Rs. 34,12,105/- is towards short landing of the cargo under six Bills of Entry. The penalty proposed to be imposed appears to be in the context, equivalent to the amount of short landing, according to the petitioner s counsel. By various orders, the Revenue has enforced and collected an amount of Rs. 18,55,597/- (Annexures J, K1 to K3). Ultimately, in the process order of the Assessing Authority has been confirmed nearly after three years by the Appellate Authority and the Tribunal. 17. In the case on hand, whether the penalty imposed to the tune of Rs. 34,12,105/- needs to be interfered with on the ground there is no reasonableness in the initiation of proceedings, is to be considered. 18. What is not in dispute is the short landing of the cargo since there is a Form/Declaration field by the petitioner himself. Subsequently, a revised certificate is also issued regarding short landing. In the statement of objection, Revenue also has clari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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