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2017 (4) TMI 834 - CESTAT HYDERABAD

2017 (4) TMI 834 - CESTAT HYDERABAD - TMI - Refund claim - according to appellant as there was short landing of goods, they had paid excess customs duty - refund rejected on the ground that the appellant has not established that the goods have short landed - Held that: - The Steamer Agent is responsible for the documents filed before the customs authorities - If the document is false, the department can issue notice or take necessary action against Steamer Agent for any false document filed befo .....

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-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 Lading dated 18.08.2010. The goods were shipped through vessel M.V. Queen Dina which was for two different parties of which appe .....

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to the statement of facts of the Draught Survey Report stated there was short landing of goods, in appeal no. 489/2012. In appeal no. 490/2012 there is no such mention in statement of facts. On 14.09.2010 out of charge was issued. From this date onwards, the appellant started unloading the cargo from the vessel by trucks into the dock. While doing so, the cargo was weighed and it was found that there is a shortage in the goods landed. In appeal No. C/489/2012 the shortage of goods according to .....

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h 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 .....

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Annexure enclosed to the Statement of Facts mentioned that there is shortage of goods landed. In the case of 4400 MTs (appeal no. 489/2012) in the Annexure a shortage of 200 MTs is noted. In the case of import of 10,000 MTs the certificate itself showed that the quantity landed is only 9900.674 MTs. He submitted that this Joint Survey Report/Statement of Facts is signed by the Steamer Agent of the appellant as well as the Master of the Ship. On 14.09.2010 out of charge order was issued and on th .....

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after unloading and transportation of the goods to the dock/store area. That at the time of the initial survey itself 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 Note .....

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goods landed is 4400 MTs and 900.674 MTs in case of each of the appeals. The weighment later done by the appellant was not under the supervision of the department and therefore the appellant cannot contend that there is short landing of goods. As the appellant did not produce a Custodian Certificate to corraborate the document of weighment certificate the authorities below have rightly rejected the refund claim. 7. I have heard the submissions made before me. In both orders passed by the authori .....

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is noted in the last page of Statement of Facts that the Annexure enclosed along with the Statement of Facts shows the shortage of goods. This Annexure reads as under: Certificate in Appeal No. C/489/2012: VESSEL HAS DISCHARGED APPROX 4198 MT OF SULPHUR ON 100% WEIGHMENT BASIS WITNESSED BY INDEPENDENT SURVEYORS AGAINST QUANTITY OF 4400MT. AS SUCH 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 .....

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f goods was recorded. Undisputedly this document has been furnished to the department along with details of B/E. Therefore the same has been brought to the knowledge of the department. The goods were bulk cargo. Initially, the same cannot be weighed but a draught survey is conducted. The goods have later been weighed after issue of out of charge and unloading on 14.09.2010 onwards. The goods were weighed and transported and this ended on 28.09.2010/29.09.2010. The very same Joint Survey party ha .....

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riginal the adjudicating authority has observed that the appellant ought to have furnished a Custodian Certificate to establish that there is short landing of goods. This has been countered by the Ld. Counsel for appellant placing reliance on the Port Trust Rules contained in 4.7.1, 4.7.2 & 4.7.3. As per the General Notes stated therein, no such custody is to be taken in the case of bulk cargo. Therefore there is no rule to issue a Custodian Certificate in the case of bulk cargo. When there .....

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