Feedback   New User   Login      
Tax Management India. Com TMI - Tax Management India. Com
Home Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Case Laws Manuals Short Notes Articles News Highlights
Extracts
Home List
← Previous Next →

M/s. CAG Shipping (India) Pvt. Ltd. Versus The Government of India, The Commissioner of Customs and Central Excise (Appeals) , The Joint Commissioner of Customs

2016 (9) TMI 619 - MADRAS HIGH COURT

Short-landing of goods - Acid Grade Flurospar - is tolerance limit of 6.47% justified? - Imposition of penalty - Held that: - The experts say the Acide Grade, which shipped routinely in the form of damp filtercake, contains 7% to 10% moisture. Adoption of the tolerance limit at 6.47% is correct. - If 6.47% is adopted as tolerance limit on the entire manifested cargo, then there will be no shortlanding. The respondents are directed to adopt the tolerance limit of 6.47% on the entire manifeste .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

petitioner and Mr.A.P.Srinivas, learned Senior Central Government standing counsel for the respondents and with their consent, the writ petition itself is taken up for disposal. 2. In this writ petition, correctness of the order passed by the Adjudicating Authority as confirmed by the Appellate Authority as slightly modified by the Revisional Authority involving shortlanding of goods is questioned. Though the facts of the case appear to be complicated, the controversy involved lies in a very nar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ave been chargeable on the deficient goods was calculated at ₹ 5,15,366/-. Therefore, a show cause came to be issued to the petitioner on 11.03.1996 under Section 124 of the Customs Act, stating that the petitioner has not accounted for the shortlanded quantity of 237.684 W.M.T. of Acid Grade Flourspar as per Section 116 (a) read with Section 148(2) of the Customs Act, 1962. Therefore, they were called upon to show cause as to why the penalty should not be imposed not exceeding twice the a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hortlanded in DMT 222.472 DMT 6. CIF Value of 222.472 DTM @ U.S. $ 81.00 Per DMT U.S.$ 18020.23 7. Exchange Rate @ U.S.$31.55 for U.S. $ 18020.23 Rs.5,68,538.25 8. Landing charges @ 1% of CIF Value Rs.Rs.5,685.38 9. Total Assessable value Rs.5,74,223.63 10. Basic customs duty @ 65% on assessable value Rs.3,73,245.35 11. C.V.D. @ 15% on Assessable value Rs.1,42,120.34 12. Total Customs duty Rs.5,15,365.69 OR Rs.5,15,366/- (Rupees Five Lakhs Fifteen Thousand three hundred and sixty six only) Assis .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

while adopting the tolerance limit, the Adjudicating Authority applied the percentage of 0.5% of the manifested quantified as quantity lost. This, according to the Adjudicating Authority, is universal accepted principle in Maritime Law, for which, the Authority has also referred to the order passed by the Government of India. The petitioner preferred an appeal before the Commissioner of Customs and Central Excise (Appeals), Trichy, who had concurred with the Adjudicating Authority. As against t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ted as penalty by issuing detention notices. The correctness of the impugned orders are assailed in the present writ petition. 5. I have heard the submissions made by the learned counsel appearing on either side carefully and perused the materials available on record. 6. Learned counsel placed reliance on an article published by Mr.M.Michael Miller, who said to be an internationally renowned expert on chemicals. This article has been relied upon to show the nature of the material Fluorspar and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ameters as mentioned by Mr.Michael Miller. However, while adjudicating the show cause notice after receiving the reply, the Adjudicating Authority adopted a percentage of 0.5% and stated that it is an universal accepted principle in Maritime law. 7. Learned Senior standing counsel for the respondent department relied on the order passed by the Revisional Authority in the case of In Re:Spanoceanic Services Pvt.Ltd. [2014 (313) E.L.T. 848 (G.O.I.)]. However, the material, which was subject matter .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rrect. 9. The Revisional Authority found that the petitioner was not intentionally involved in the short landing, therefore, exercised his discretion and reduced the penalty. While doing so, the Revisional Authority ought to have seen that the mistake committed by the Adjudicating Authority in calculating the tolerance limit only for the shortlanded quantity in the show cause notice. This error ought to have been rectified. Though the Adjudicating Authority accepted the mistake and rectified the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hore out-turn. Two things are clear, that is there was no cargo left in the vessel. Secondly, the vessel did not berth in the port and the cargo was discharged into the barges and from the barges, it has come to the port area, where the quantity of the cargo has been measured. Therefore, even going by the order in Spanoceanic Services (supra), there are several types of loses, that is loss of Board, Loss of Pier and other handling losses at different places. Thus, this cargo has been handled in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t is thereafter on 31.08.1999 that the show cause notice has been issued. The original authority refers to the deduction of moisture content and the tolerance limit of 0.5% of manifested quantity as the quantity lost and revised the shortlanded quantity as 265.681 metric tonnes. The submission of the learned counsel is that if the deduction of moisture content is made for the manifested quantity then there won't be any shortlanding. The Commissioner of Customs and Central Excise (Appeals) ha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

omes to such a conclusion, then the only option available for the Court is to send back the matter to the authority for reconsideration. However, this Court does not propose to do the same, since the show cause notice itself was issued after a lapse of two years from the date on which the cargo landed at the Cuddalore port and it has taken over 10 years for the conclusion of the proceedings at different levels culminating in the order passed by the Revisional Authority during March, 2004, which .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Forum
what is new what is new
  ↓     bird's eye view     ↓  


|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version