TMI Blog2013 (12) TMI 1465X X X X Extracts X X X X X X X X Extracts X X X X ..... to ₹ 3,47,879/-. - Decided partly in favour of assessee. - F. No. 373/70/SL/13-RA - 291/2013-Cus - Dated:- 13-12-2013 - Shri D.P. Singh, Joint Secretary Shri V.J. Mathew, Senior Counsel, for the Assessee. Shri K. Bhanu Murthy, Superintendent, for the Department. ORDER This revision application is filed M/s. K.R. Sons Pvt. Ltd., Platinum House D.No. 25-12-2006 Godeyvari St. Vishakhapatnam against the order-in-appeal No. 8/13-V-C.H. dated 15-4-2013 passed by the Commissioner of Customs (Appeals), Customs House, Port Area, Vishakhapatnam with respect to order-in-original No. 830/12, dated 5-12-2012 passed by the Assistant. Commissioner of Customs (MCD), Customs House, Vishakhapatnam. 2. Brief facts of the case are that the applicant being the steamer agent had filed IGM No. 0307/12 under Section 30 of the Customs Act, 1962 for the vessel M.V. ARKTO arrived in Visakhapatnam Port with 5,400 M.T. of Ammonium Nitrate, manifested to be discharged here on account of the importer M/s. Indian Explosives Ltd., Kolkata. On scrutiny of the IGM, it was found that as per the joint draught survey done by M/s. Pinnacle Marine Services (P) Ltd M/s. Peters Prasad A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses 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. 4.5 The respondent had wrongfully calculated the penalty on the appellants. Without admitting the fact that there is short landing, the respondent should have calculated that 0.5% which is the tolerance limit of the cargo of 5400 MT is 27 MT and hence if at all there is short landing, the same can be calculated only for 72 MT as against 99 MT. 4.6 The respondent appreciated the dictum laid down in the case of Shaw Wallace Co Ltd. v. Assistant Collector of Customs reported in 1987 (3) Bom C.R. 151 = 1986 (25) E.L.T. 948 (Bom.) in its true spirit. The Hon ble High Court while deciding the above case had observed that 1% of the loss of cargo is allowed as the same falls within the permissible limits. Hence if at all there is short landing, the penalty should be imposed for the amount above 1% permissible limit. The permissible limit in the above case is 54 MT and hence the respondent should have penalized the appellant onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... double the duty involved under Section 116 is upheld by Commissioner (Appeals). Now, the applicant has filed this revision application on the grounds stated above. 8. Government notes that Chapter VI of the Customs Act, 1962 provides the 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 the 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 therein are to be taken as statutory declarations for the purpose of further action under the relevant provisions of Customs Act, 1962. Similarly, Chapter V of the Act provides for levy and assessment of Customs duties and Section 13 thereof 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been exported. The said provision of Section 116 makes it clear that penalty is imposed for not unloading the goods which were loaded in vessel for importation into India. There is no requirement of proving mens rea on the part of person-in-charge of conveyance. In this case, the short landing or non-landing of goods is admissible by the applicant. As such penalty is imposable under Section 116 ibid. 8.3 Government notes that for interpreting the provisions of law, Hon ble Supreme Court in the case 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 libe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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