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TMI Blog2011 (3) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation 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 vessels were permitted to depart. Subsequently, after lapse of 5-6 years, petitioner was issued with a notice proposing to levy penalty under Section 116 of the Customs Act of 1962 for the short landing of the cargo during the years 1994 and 1995. The petitioner contested matter. However penalty was confirmed at various levels. According to the petitioner, levy of penalty is wholly illegal and arbitrary and such a belated claim is without jurisdiction. Hence, he is before this court on various grounds. 3. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 and Company Ltd., - (2009) 10 SCC 755. (10) Mohinder Singh Gill v. Chief Election Commissioner, New Delhi - AIR 1978 SC 851. (11) Singapore Airlines v. Union of India - 2002 (121) E.L.T. 289 (Del.) to contend that, no reasons have been assigned in invoking the proceeding after lapse of seven years much less, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 period of limitation by implication, where there is really none in law, so as to prescribing a period of limitation to do or not to do a thing after the expiry of the period so stipulated as the consequence of creation and destruction of rights and therefore, must be specifically enacted and prescribed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, to a penalty not exceeding twice the amount of export duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plained. 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 clarified as to the cargo declaration. It has noted in the order dated 29-12-2000, as to the discharge quantity i.e., in stead of 3,200 metric tons in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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