TMI Blog2010 (4) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... as claim bill, invoice, copy of Bill of Entry and Bill of Lading, BPT Tally Sheet and sub-arrival. A Show Cause Notice dated 21-7-1997 was issued to M/s. United Liner Agencies of India Pvt. Ltd. to explain the reasons for short landing and/or to account for the goods reported short landed. Letters were also issued to the importers asking them to furnish the refund particulars, if refund had been granted. There was no response for the Show Cause Notice and various letters issued to the shipping agent and the importers. The MBPT stated that for item no. 110, single package had landed in the said item and hence tally sheet was not available. Tally sheet was also not available for item no. TP-122 as no package had landed. The Bill of Entry or the Bill of Lading of the same were also not received. During the personal hearings, the representative of M/s. United Liner Agencies of India Pvt. Ltd. submitted that they did not receive any Show Cause Notice except the letter dated 10-2-2004 which was received after nearly 8 years; that two packages in item no. T-122, being a transshipment cargo meant for Abu dhabi was carried by the subject vessel and noted in the Customs manifest in Customs p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk, further the Assistant Docks Manager, Mumbai Port Trust, has ordered to draw outturn report for 2 pks. as short landed vide order dated 7-11-2006. Further, the Mumbai Port Trust vide their endorsement on this office letter dated 11-12-2003 categorically reported that under item no. L-110, no single package landed. It is also reported that no package landed under item no. TP-122. 4.2 The Steamer Agent was penalized for short landing for item no. L- 13 on the basis of established short landing. However, for item no. L-84 and L-110 no documentary evidence was produced by the Steamer Agent by the importer before the Commissioner (Appeals), except a letter Ref. IC B 04166, dated 3-3-2004 from clearing Agent M/s. Manilal Patel stating that the goods covered under item No. L-110 was cleared in full. Mere a statement made by the said clearing agent without any documentary evidence i.e. Bill of Entry showing Customs out of charge by the proper officer for any other import document, has been considered as evidence to forgo Government revenue for the said short landed goods as recoverable under Section 116 of the Customs Act, 1962. 4.3 The Commissioner (Appeals) for item no. L-84 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai Customs House to clear the import cargo on behalf of the importers and is required to maintain the particulars of the clearance of cargo by them under the Customs House Agents Licensing Regulations and they had furnished the import particulars on the basis of their records. Similarly for item No. 84, the importers, M/s. Makalu Trading Pvt. Ltd., who had imported the goods, had confirmed by their letter dated 9-3-2004 that they had cleared the consignment in full against item No. 84 through their Clearing Agents, coupled with the fact that neither the Steamer Agents nor the Department has received any claim or refund application for the said short landed goods. The Department till this day has not produced any evidence to contradict the contents of both the letters and have solely relied upon BPT outturn report. The Commissioner (Appeals), Mumbai has satisfied himself objectively taking into consideration the totality of facts and circumstances of the case with all documents available on record and that the order passed by the Commissioner (Appeals), Mumbai, in respect of subject Item Nos. 84 110 is proper and legal. Copies of letters referred to above sent by M/s. Manilal Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t/steamer agent or from the Importer/CHA. Further letters dated 17-8-1999, 9-11-1999 and 14-2-2000 to importers also evoked no response. Further letters dated 12-4-2000 and 10-10-2000 were not responded by the respondent herein. It was only after issue of personal hearing notice for 13-3-2002 a request for further time limit up to 18-3-2002 was received and the adjudication proceeding could be finally started which conclude on 18-8-2006. 9. From above Government is of the view that in this case where proper proceedings were initiated well within one year in 1997 and continued up to 2006 on account of delayed responses/replies from the respondent s side. No charge of delay can be attributed solely to the department Hon ble High Court of Mumbai s observations in W.P. No. 528/95 are with respect to issuing show cause notice in reasonable time. 10. Government further notes that the short landing proceedings in this case were initiated on the basis of filed IGM No. 2276, dated 27-8-1996 duly supported by Mumbai Port Trust outturn report indicating the items under reference as short landed. In this regard Government notes that as per provisions relating to conveyance carrying Imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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