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M/s. J.M. Baxi & Co. Versus The Government of India

2016 (6) TMI 813 - MADRAS HIGH COURT

Levy of penalty on steamer agent u//s 116(a) r.w.s. 149(2) - short landing of the cargo - Held that:- Unfortunately, in the case on hand, the Department had missed the bus. The original order of adjudication itself shows that the appellant claimed to have discharged more quantity than what was entrusted to them. But, after arrival, a landing certificate was issued only in 1994 to the effect that there was short delivery. At the time when the landing certificate was issued on 30.9.1994, the vesse .....

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AMASUBRAMANIAN AND MR. N.KIRUBAKARAN, JJ For Appellant : Mr.K.Bijai Sundar For Respondents : Mr.V.Sundareswaran, Senior Panel Counsel JUDGMENT V.RAMASUBRAMANIAN,J. This appeal arises out of the dismissal of a writ petition filed by a Steamer Agent, challenging the orders of three consecutive authorities eventually imposing a penalty under Section 116(a) read with Section 148(2) of the Customs Act, 1962. 2. Heard Mr.K.Bijai Sundar, learned counsel for the appellant and Mr.V.Sundareswaran, learned .....

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landing certificate issued on 30.9.1994, the Assistant Collector of Customs issued a show cause notice dated 02.3.1995 alleging that there was short landing of the cargo to the extent of 288.725 MT. The appellant sent a reply on 23.5.1995. 5. Though nothing happened after the appellant sent a reply, the appellant invited trouble for themselves by sending a letter in 1999, asking for an opportunity of personal hearing. The officials woke up from their slumber, granted an opportunity of hearing a .....

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als), the Department filed appeals before CEGAT on 13.9.2002. Those appeals were not maintainable since the order of the Commissioner (Appeals) was only revisable by the Government, under Section 129-BD of the Customs Act, 1962. Therefore, the papers were returned by CEGAT for presentation to the appropriate authority. 8. Therefore, the Revenue filed a revision before the Government, obviously with a delay of about 111 days. 9. By a final order dated 13.7.2004, the Government of India not only c .....

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by an order dated 19.10.2011, forcing the Steamer Agent to come up with the above writ appeal. 11. Apart from various other grounds, touching upon the method of weighing the quantity of goods discharged by a vessel, Mr.K.Bijai Sundar, learned counsel for the appellant raised three important legal grounds. They are (i) that the Government had no power to condone any delay beyond 90 days and that the provisions of Section 14 of the Limitation Act, 1963, would not apply, (ii) that in any case, the .....

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of Central Excise [2015 (319) ELT 373 SC]. In the said case, the Supreme Court has concluded that Section 14 of the Limitation Act would apply to the proceedings under the Customs Act, 1962. Therefore, the period during which the Revenue was prosecuting an appeal before a wrong forum, namely CEGAT, should be excluded while computing the period of limitation. Hence, we find the first question of law raised by the appellant to be answered against them. 13. Incidental to the first issue, Mr.K.Bija .....

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urned the appeals, should be excluded. Therefore, the fact that the Government did not go into the question of sufficiency of cause for condonation of delay, would not really advance the cause of the appellant. 15. Insofar as the second question of law is concerned, the learned counsel for the appellant is right. It is seen from paragraph 4 of the order of the Government, the Government condoned the delay and took up the revision itself on the same day and allowed it. It is needless to point out .....

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rge of the cargo has occurred and a delay of about just less than five years has occurred in passing the order of adjudication on the show cause notice. As we have indicated earlier, the discharge of the cargo took place on 31.7.1992, the show cause notice was issued on 02.3.1995, the reply was sent on 23.5.1995 and the order of adjudication was passed on 07.01.2000. 17. In the order of adjudication dated 07.01.2000, there is nothing to indicate as to what transpired from 23.5.1995 up to 07.01.2 .....

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n respect of which no period of limitation is prescribed, should be done at least within a reasonable time. What is reasonable time, would depend upon the facts and circumstances of each case. In cases of this nature, where the weight of the cargo discharged by the vessel of a Steamer Agent is questioned, it is not possible for a Steamer Agent to defend themselves against the show cause notice long after the vessel had sailed. Therefore, the third question of law is also be answered in favour of .....

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