TMI Blog2010 (1) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... order-in-Original No. 85/07 dated 3-4-07 as passed by the jurisdictional Assistant Commissioner of Customs (Kolkata). 2. Brief that of the case is that a refund claim of Rs. 74,986.00 was filed for short Landings of 25.580 MT of Naptha. For the short Landed goods, a show cause notice dated 25-6-2003 was issued to the steamer agent, M/s. United Liner Agencies of India (Pvt.) Ltd. as per survey report dated 30-7-2002 for imposition of penalty under section 116 of Customs Act, 1962. The steamer agent, United Liner Agencies of India (Pvt.) Ltd. submitted vide Letter dated 9-7-2003 that as per ullage report, the quantity was 27198.480 MT and the shortage within 1% of the B/L quantity of 27224.060m MTs. and allowable as per Customs Act, 1962. An order was passed on 9-12-2003 and imposed a penalty of Rs. 1,00,000/- vide order-in-original No. 114/03 dated 16-12-2003 but that order on an appeal filed by applicant was disposed of by the Commissioner (Appeals) vide order no. Kol/Cus/98/CKP/04, dated 6-4-2004 by way of remand with the direction to pass a proper and reasoned order in accordance with the provision of Law, particularly taking into account the instruction of C.B.E. C. The imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raffin by the tanker MT. Stavenger Oak and were discharged at oil jetty, Haldia. Paraffin i.e. semisolid form is not a volatile chemical in nature. 2.2 It was observed that the steamer agent s representation dated 19-4-06 are not acceptable that the goods were liquid Naptha and the C.B.E. C. Circular No. 96/2002 dated 27-12-2002 is not applicable in the instant cases with respect to the load port quantity and liquid in bulk and volatility. 2.3 The adjudicating authority held the goods as semi-solid form as per certificate of quality issued by the overseas inspection agency. The authority doubted the authenticity of the load port quantity certificate which was submitted after a long gap and held that submission of false documents is a punishable offence u/s 132 of the C.A. 62. A penalty of Rs. 1,00,000/- (Rupees One lakh only) was imposed on the appellant for the short landing). 3. On having been aggrieved by the above order-in-original the Applicant preferred an appeal before the jurisdictional Commissioner of Customs (Appeal) who upheld the order-in-original on merits as per his order-in-Appeal, the operative part of which is reproduced below for ready reference : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignment was not Naptha but Napthene ; 4.3 Whether the Assistant Commissioner was right in ascertaining shortlanding under Section 116 of the Customs Act, 1962 by collating the Bill of Lading quantity with the Discharge Port Ullage quantity and arriving at an axiomatic shortlanding of 25.580 metric tons notwithstanding the production of the Load Port Ullage Report which evidenced a short-shipment to the extent of 21.475 metric tons; 4.4 Whether the Assistant Commissioner was right in discarding vital documentary evidence in the form of the Note of Protest lodged by the Master recording the ascertained short shipment of 21.475 metric tons; as determined on the basis of the Load Port Ullage Report; 4.5 Whether the Assistant Commissioner of Customs was right, notwithstanding the satisfactory accountal of 21.475 metric tons (as short-shipment), by documents of evidential value, in proceeding to impose penalty on the Applicants for the axiomatic shortlanding of 25.580 metric tons; 4.6 Whether by reason of satisfactory accountal of 21.475 metric tons on account of short shipment, the Assistant Commissioner of Customs erred in not treating the differential quantity of 4.115 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case including orders passed by lower authorities alongwith applicable provisions of Acts/Rules and details of all subsequent submissions as made above in this matter. 7. Govt. notes that the basic dispute in this case i.e. as to whether penalty due to alleged short landing is imposable on the Applicant steamer Agent in this case or not. 8. The Applicant is citing the impugned goods as liquid Naptha (CTH- 27.11) in bulk prone to losses in transit (as volatile) as per initial assessments made in the Bill of Entry and for calculation of alleged shortage Bill of Landing quantity (of 27224 - 060 M.T.) and quantity actually loaded on board (of 27202 - 595 M.T.) as per recorded ullages actually ascertained as per a letter of protest by master of the Vessel dated 12-5-2001 thus shortage of 0.79% only. Therefore difference between the load port Ullage quantity (27202 - 595 M.T.) and discharge port Ullage quantity (27198 - 480 M.T.) would work out to be just 0.015%. Further assuming but not admitting the correctness of B/L quantity with discharge port Ullage quantity the shortage would be 0.09%. All these are within 1% of permissible ocean loss. 9. The Respondent Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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