TMI Blog2017 (4) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as been subject of scrutiny at the time of adjudication, till date no action has been proposed or taken against the Steamer Agent - there is short landing of goods as stated in the weighment certificate dated 30.09.2010 - rejection of refund is unjustified - appeal allowed - decided in favor of appellant. - C/489/2012 & C/490/2012 - A/30355-30356/2017 - Dated:- 9-2-2017 - Ms. Sulekha Beevi, C.S., Member (Judicial) Sh. N. Anand, Advocate for the Appellant Sh. Guna Ranjan, Superintendent (AR) for the Respondent ORDER [Order Per Sulekha Beevi, C. S.] 1. The appellants imported 4400 MTs of Bright Yellow Sulphur crude bulk from M/s Swiss Singapore Middle East (FZE), Dubai. The goods were supplied vide Bill of Ladin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected the refund stating that other than weighment certificate the appellant has not produced a custodian certificate to establish the short landing of goods. The refund claim was thus rejected observing that appellant has not established that the goods have short landed. In appeal, the Commissioner (Appeals) upheld the same. Hence these appeals. 4. On behalf of the appellant, the Ld. Counsel Sh. N. Anand submitted that the quantity of goods shown in the BoE in appeal no. C/489/2012 is 4,400 MTs and in the case of C/490/2012 the quantity is 10,000 MTs. The appellant therefore had paid duty to the tune of ₹ 65,75,192/- for 4,400 MTs and ₹ 72,10,538/- for 10,000 MTs on the goods. The Ld. Counsel submitted that after the vessel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the short landed quantity in both case was reflected in the Statements of Facts. 5. The Ld. Counsel adverted to the Order-in-Original and submitted that the authorities below rejected refund claim stating that the appellant has not produced a custodian certificate to establish that there is short landing of goods. The Notification issued by Visakhapatnam Port Trust - General Notes to schedule 4.7.1, 4.7.2 and 4.7.3 gives the rules regarding Custodian Certificate. It is specifically stated in clause 5 of Rule 6 of notes that in the case of bulk cargo no Custody Certificate is necessary. That therefore the authorities below had rejected refund without any legal basis. 6. Against this, the Ld. AR Sh. Guna Ranjan submitted that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H THERE IS A SHORT DELIVERY OF APPROX 202 MT FOR WHICH ON BEHALF OF OUR PRINCIPALS M/S. THE ANDHRA SUGARS LIMITED WE HOLD VESSEL MASTER/CHARTERERS/OWNERS RESOPONSIBLE FOR THE SHORTAGE OF CARTL AND CONSEQUENCIAL LOSSESS THEREON. PLEASE TREAT THIS AS OUR PROVISIONAL CLAIM. Certificate in Appeal No. C/490/2012: THIS IS TO CERTIFY THAT M/SSRAVAN SHIPPING SERVICES PVT. LTD, SERVEDORES AT VISAKHAPATNAM PORT, HAVE DISCHARGED 9900.674MT OF BRIGHT YELLOW SULPHUR IN BULK EX- M.V. BM WARRIER ON ACCOUNT OF M/S.THE ANDHRA SUGARS LIMITED WITHOUT CAUSING ANY DAMAGE TO THE SHIP S PROPERTY/GEAR AND EQUIPMENT. 8. Thus at the time of Joint Survey itself shortage of goods was recorded. Undisputedly this document has been furnished to the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants cannot be called upon to produce the same. The denial of refund for the reason that the appellants have not produced a Custodian Certificate in my view is unjustified. The Ld. AR, has contended that since the weighment was done after issue of out of charge and not done under the supervision of the department, the Statement of facts or the weighment certificate cannot be accepted to hold that there is short landing of goods. It has to be mentioned that in the Statement of Facts as well as the Annexure to this, the Steamer Agent has stated that there is short landing of goods. The Steamer Agent is responsible for the documents filed before the customs authorities. These documents have been put before the Custom Officer who has issued ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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