TMI Blog2013 (2) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the Bill of Lading quantity of 43729.300 MTs thus leaving an excess of 180.49 MTs. This factual position is also contrary to the contentions of applicant. Applicant has contended that as per normal practice tolerance limit of 1% is allowed to such cargo. If the tolerance of 1% is allowed, the short landed quantity will come down to 25.5 Mts. Government notes that lower authorities have categorically held that there is no tolerance limit of 1% for bulk solid cargo of pet coke. The C.B.E. & C. Circular 96/2002-Cus., dated 27-12-2002 refers to import of bulk liquid cargo only. In the absence of any such guidelines, the said contention of applicant is not acceptable. Chapter VI of the Customs Act, 1962 stipulates the statutory provisions relating to conveyances carrying imported (or exported) goods. Section 30 stipulates delivery of import manifest or import report with true declaration therein. Further Import Manifest (Vessel) Regulations, 1971 provides that nature, condition and position (including status) to be truly declared as per respective declaration form. It is therefore quite clear that “Manifest” is to be considered a basic legal document and the declarations made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai. 2. Brief facts of the case are that the applicants were supposed to unload 43729.30 MT of Pet Coke (Non-calcined Petroleum Coke) imported from USA in their vessel M.V. Condor which on arrival at Chennai Port, discharged 43266.6 MT of Pet Coke by leaving a short quantity of 462.7 Mts. The original adjudicating authority imposed penalty for an amount of ₹ 7,55,900/- under Section 116 for the short landed quantity of 462.7 MT. 3. Being aggrieved by the said order-in-original, the applicant filed an appeal before Commissioner (Appeals) who upheld the impugned order and rejected the appeal. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 129DD of Customs Act, 1962 before Central Government on the following grounds : 4.1 The Lower Authority erred in not taking into consideration the fact that both the stowage plan and the Bill of Lading reflect the quantity of cargo that has been loaded viz. 43729.300 Mts. and which quantity in any event is not in dispute, more so when the alleged shortage has been arrived at only on the basis of the Bill of Lading quantity. The vessel did not carry any other cargo, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Carrier and the quantity pumped out is to be taken into consideration, while determining the actual quantity discharged. 4.4 The Lower Authority erred in concluding that since as per the Survey Report, 643.190 Mts. of water was bilged out and 43266.6 Mts., of cargo has been actually discharged and if the total discharge is taken as 43909.790 Mts., the same is in excess of the Bill of Lading quantity of 43729.300 Mts. leaving an excess of 180.49 Mts., and that the applicant has not properly justified the anomaly viz. excess discharge, thereby not appreciating that in practice, raw petroleum coke is loaded in a wet condition and the quantity of moisture and cargo are not separately indicated. 4.5 The Lower Authority erred in not extending tolerance limit. The Lower Authority failed to take into consideration the fact that it is the usual practice to extend tolerance limit and that the Joint Commissioner of Customs has in an identical case passed in File No. IGM5676/2004, order dated 30-10-2009 bearing No. 9916/2009-MCD, held that prior to levying penalty for short landing of raw petroleum coke, a tolerance limit of 1% is to be allowed and a steamer agent is liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of water cannot be specifically indicated. It is for this reason that the vessel is required to maintain a report of the moisture pumped out and which quantity is to be taken into account while determining the quantity discharged erred in concluding that the goods have not been subjected to test and a certificate obtained to indicate whether the cargo is completely without moisture and if not how much moisture has been left out. The Lower Authority there erred in concluding that the Shipping Agent ought to have obtained the load port survey report with all mandatory documents and that no document indicating the nature of cargo, tolerance limit, moisture content has been produced. 5. Personal hearing in this case was scheduled on 8-10-2012 and 13-12-2012. The hearing held on 13-12-2012 was attended by Shri C.J. Shyamala, Advocate on behalf of the applicant who reiterated the grounds of revision application. In a written submission dated 12-12-2012 they further relied upon the decision of Hon ble Revisionary Authority dated 29-12-1987 and 27-4-1988 passed in the cases of South India Corporation Agencies Ltd. and Shaw Wallace and Company respectively and they further referred Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agent/applicants under Section 116 of Customs Act, 1962. Commissioner (Appeals) has upheld the impugned order-in-original. Now the applicants have filed this revision application on the grounds stated in para 4 above. 8. Government notes that basic issue for decision is whether the bilge water pumped out can be taken into account for setting off the shortage of pet coal. In this regard Government notes that the applicants has not produced the relevant contract/purchase order, invoice, bill of lading, etc., between the supplier and the importer indicating the nature of cargo, tolerance limit, percentage of moisture content, if any, in support of his claim that cargo had a moisture content which transferred into bilged water pumped out of ship during voyage. If the cargo has moisture content, then the same is required to be mentioned in the import document issued by supplier. When the moisture content and its percentage in the cargo are not explicitly mentioned, the plea of the applicant is not supported by valid documentary evidence. In the absence of any such proof, the applicant s plea to cover up the short landing taking into account the bilged out water, cannot be accepted. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty not exceeding twice the amount of duty. 11. In order to understand the penalty provisions, relevant Section 116 of Customs Act, 1962 is reproduced below : 116. Penalty for not accounting for goods. - If any goods loaded in a conveyance for importation into India, or any goods transshipped under the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity unloaded is short of the quantity to be unloaded at the destination, and if the failure to unload or the deficiency is not accounted for to 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 transshipped under the provisions 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 goods been imported; (b) In the case of coastal goods, to a penalty not exceeding twice the amount of export duty that would have been charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge by or under this Act or any law for the time being in force and to penalties and confiscation which may be incurred in respect of that matter. As such steamer agent is liable to penal action under Section 116 ibid in this case matter. 13. Government notes that for interpreting the provisions of law, Hon ble Supreme Court in the case of M/s. ITC Ltd. v. CCE, Delhi - 2005 (171) E.L.T. 433 (S.C.) and M/s. Paper Products Ltd. v. CCE, Vadodara - 1999 (112) E.L.T. 765 (S.C.) has held that ordinary and natural meaning of words of statutes has to be strictly construed without any intendments or any liberal interpretation. Hon ble Supreme Court in the case of British Airways PLC v. UOI - (2002) 2 SCC 95 = 2002 (139) E.L.T. 6 (S.C.), has categorically held that penalty under Section 116 is leviable for not accounting for goods, on the person-in-charge of conveyance, his agent or person representing the person-in-charge. In view of the position, Government is of view that penalty has been rightly imposed under Section 116 on the applicant. 14. In view of above circumstances Government does not find any infirmity in the order of Commissioner (Appeals), therefore upholds the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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