TMI Blog2013 (12) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... ng cargo of 36749.322 MT of BYCS in bulk for deliver at Chennai and Vizag Ports. 22000 MT cargo was discharged at Chennai Port in respect of BL No. 1 & 2. The said vessel arrived at Vizag on 24-6-2012 and discharged cargo of 14539 MT in respect of BL No. 3, 4, 5 against the quantity of 14749.322 MT. Applicant has claimed that 0.5% tolerance limit should be worked out on total quantity of 36749.322 MT as 183.75 MT which should be taken into account for arriving at the actual shortlanded quantity. In this regard, it is noted that the vessel has discharged 20000 MT cargo at Chennai port and balance cargo of 14539 MT at Vizag port. This fact is not rebutted by the department. The tolerance limit has to be applied with reference to total bulk cargo of BYCS which was loaded in the vessel. The losses occurred with reference to quantity of 20000 MT discharged at Chennai cannot be attributed only to the quantity of cargo discharged at Vizag. Losses of 0.5% of total cargo loaded in the vessel i.e. 36749.322 MT equal to 183.75 MT is to be considered as genuine losses due to natural causes and as per general practice the said quantity of 183.75 MT is not to be taken as shortlanded quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act on the applicant. 3. Being aggrieved by the impugned order-in-original, the applicant filed 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 impugned order was passed by the Commissioner of Customs (Appeals) without considering the material facts and the relevant documents. The impugned order is without proper application of mind. 4.2 The impugned order failed to consider that at the time of loading of Bright Yellow Crude Sulphur, the same is sprinkled with water, in order to prevent the Bright Yellow Crude Sulphur dust flying all around the place and within the ship s hatches. Addition of sprinkled water can easily translate to marginal increase in weight and draft survey figures at the load port inserted on the bills of lading would reflect this increase. In any case it is a well established aspect of marine practice that Draft Survey measurements are not exact but approximates and can vary depending upon several fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sture content; evaporation and/or absorption of moisture due to exposure of the subject shipment to the elements otherwise atmospheric change, attendant all throughout the stages of transit from port of loading/origin to final destination. Unrecovered spillages during unloading of the subject shipment from vessel. Probable error/oversight aboard vessel due to sea condition prevailing at the time of initial and final draft surveys, Variance due to inaccuracies or errors in manner, procedure, method, and/or equipments used or applied in determining the outturn quantity/weight of the subject shipment per stage of transit from port of loading/origin to final port of destination. It bears stressing that there is nothing in the records showing that Owners/Vessel were negligent in its handling of the cargo when its stevedores discharged cargo from the vessel. 4.8 The respondent has not considered the fact that the consignees have paid the full customs duty for the entire cargo according to its weight declared in the Bills of Lading. Since the full customs duty on the entire cargo according to its gross weight as declared in the Bills of Lading had been paid, there is no loss of revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to moisture contents. To add up to these losses occurred at the Loss at Pier, Loss on Board, other handling losses and loss due to moisture content, it is a general practice to allow 0.5% tolerance limit in the shipment of almost all the bulk cargos. The said principle is accepted in India also and we rely on Annexure D produced along with the Revision Petition, which is the Order No. 1197/87 of the Government of India issued by Mr. K. Viswanathan, Joint Secretary, Government of India giving the benefit of permissible limit. Since the total cargo discharged from the vessel as per the Bill of Lading Nos. 1, 2, 3, 4 5 is 36,749.322, 0.5% of 36,749.322 MT. i.e. 183.75 MT should be taken as tolerance limit. Hence if at all there is short landing, the same can be calculated only for 26.572 MT as against 210.322 MT. WORKSHEET TOTAL BILL OF LADING QUANTITY AS PER BILL OF LADING Nos. 1, 2, 3, 4 5 36749.322 MT ALLEGED QUANTITY OF SHORT LANDED CARGO 210.322 MT TOLERANCE LIMIT AS PER THE DICTUM LAID DOWN IN SHAW WALLACE S CASE 0.5% (total quantity x 0.5/100) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof when read with provisions of Bill of Entry (Form) Regulations, 1976 the legality of the duty levied in this case can be clearly understood. Further for levy/calculation of impugned penalty, the provisions of Section 116 of the Customs Act, 1962 unambiguously stipulates the levy of penalty not exceeding twice the amount of duty. 9.1 The person-in-charge of conveyance is responsible for any short landing or non landing of goods. As per definition in Section 2(31) of Customs Act, 1962, person-in-charge of the conveyance is the master of the vessel. There is no dispute in the matter that there was a shortlanded quantity of cargo in this case. The steamer agent is a agent of carrier, appointed under Section 148 of Customs Act, 1962. The liability of the agent so appointed by the person-in-charge of the conveyance stipulated under Section 148 is as under :- 148. Liability of agent appointed by the person in charge of a conveyance - (1) Where this Act requires anything to be done by the person in charge of a conveyance, it may be done on his behalf by his agent. (2) An agent appointed by the person in charge of a conveyance and any person who represents himself to any off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. ITC Ltd. v. CCE, Delhi - 2004 (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. In view of these principles laid down by Hon ble Supreme Court, the penal action is rightly taken against steamer agent under Section 116, by the lower authorities. 10. Applicant has contended that the said vessel sailed from Port of Ruwais Abudhabhi on 3-6-2012 after loading cargo of 36749.322 MT of BYCS in bulk for deliver at Chennai and Vizag Ports. 22000 MT cargo was discharged at Chennai Port in respect of BL No. 1 2. The said vessel arrived at Vizag on 24-6-2012 and discharged cargo of 14539 MT in respect of BL No. 3, 4, 5 against the quantity of 14749.322 MT. Applicant has claimed that 0.5% tolerance limit should be worked out on total quantity of 36749.322 MT as 183.75 MT which should be taken into account for arriving at the actual shortlanded quantity. In this regard, it is noted that the vessel has discharged 20000 MT cargo at Chennai port and balance cargo of 14539 MT at Vizag port. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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