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TMI Blog2018 (3) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... the Manifest and Bills of Lading. Landing Certificate, dated 19.03.1993, was issued by the Superintendent of Customs, indicating a shortage of 483.739 MTs. This shortage has resulted in imposing penalty of Rs. 30,00,000/- on the petitioner under Section 116 (a) read with Section 148 (2) of the Customs Act, 1962 (hereinafter, referred to as 'the Act') by order, dated 04.08.1999 by the third respondent. On Appeal, this Order was confirmed by the second respondent/Commissioner of Customs, by Order-in-Appeal, dated 31.01.2003. The petitioner, feeling aggrieved, filed a Revision Application under Section 129 DD of the Customs Act, 1962 before the first respondent, Government of India. The Revisional Authority/first respondent, while affirming the order passed by the Original Authority, as confirmed by the Appellate Authority, granted a partial relief by reducing the penalty. This order, dated 31.03.2004, is impugned in this Writ Petition. 3. Mr.K.Bijai Sundar, the learned counsel appearing for the petitioner submitted that the vessel arrived at the Port of Cuddalore on 13.11.1992, which is an anchorage Port, and no berthing facility is available in Cuddalore. The vessel commen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vessel, and thus, any orders passed in this respect, relying upon the quantity mentioned in the Bills of Lading and the quantity arrived at the weighment point, off the shore, cannot be considered as the correct quantity, discharged by the vessel. 7. It is further submitted that the Cuddalore Port, being an Anchorage Port, without berthing facilities, the cargo, which is discharged by slings in non-standardized and the minimum stitched bags into the barges, would result in loss of cargo, and further loss will occur at the pier point, where, the labourers use hooks to carry the goods, and further loss will occur at the time of storing, which is not the petitioner's responsibility, and therefore, cannot be held liable for such loss. 8. It is further submitted that the vessel commenced its discharge on 23.11.1992, and took 2 1/2 months for the entire cargo to be discharged upto the end of February, 1993. It is further submitted that the Landing Certificate issued by the Superintendent of Customs Department, cannot be a basis for coming to a conclusion that there was shortage, as there are various other factors, which would lead to shortage. 9. By referring to the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conclusion that there is nothing on record that the petitioner has intentionally or actively responsible to the said short landing of the goods, did not grant full relief, but only reduced the penalty equivalent to the amount of duty, that would have been chargeable on the goods not landed or the deficient goods on such goods been imported. Further, there is no specific allegation made in the impugned order that the petitioner's carrier was aware of the weight of the cargo. 12. Mr.V. Sundareswaran, the learned Senior Panel Counsel for the respondents submitted that, in terms of Section 30 of the Act, a person in charge of the vessel, includes the agent of the vessel, who is responsible to deliver the goods to the proper Officer, an import manifest prior to the arrival of the Vessel. The Import Manifest (Vessels) Regulations, 1971 stipulates certain duties and Form 'C' to be submitted, and it is an obligation cast upon the person in charge of the vessel to declare the gross weight. Section 116 prescribes penalty for non-observance of these statutory duties and responsibilities on the part of the Carrier or the Agent. Therefore, the petitioner cannot be wriggled out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person in charge, as defined under Section 2 (3) of the Act and the effect of the Import Manifest. On the above grounds, the learned Senior Panel Counsel seeks for dismissal of the Writ Petition. 16 Heard the learned counsel appearing for the parties and perused the materials placed on record. 17. The undisputed facts are that the vessel, ''M.V. Merini", carrying urea in bulk, weighing 30,000 MTs under two Bills of Lading arrived at the Port of Cuddalore on 13.11.1992. The vessel commenced discharge of the cargo on 23.11.1992 and completed the discharge after 2 1/2 months, i.e., on 19.02.1993. A draft survey report was prepared on behalf of the petitioner, dated 22.02.1993, indicating discharge of 29,483 mts of cargo. The draft survey report prepared on the same day on behalf of the shipper, indicates discharge of 29,963.50 mts. The survey reports confirms full discharge of the cargo, as per the Bills of Lading and the Import Manifest filed with customs. On 19.03.1993, landing certificate was issued by Superintendent of Customs, confirming the survey reports of the petitioner and shipper, indicating short landing of 483.739 mts of cargo. On 09.03.1995, the Assistant Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Ltd., (supra), the Court pointed out that, any law or stipulation, prescribing a period of limitation to do or not to do a thing after the expiry of period, so stipulated, has the consequence of creation and destruction of rights, and, therefore, must be specifically enacted and prescribed therefor. It is not for the Courts to import any specific period of limitation by implication, where, there is really none, though Courts may always hold when any such exercise of power had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period. 21. In M/s.Wilco & Company (supra), a show cause notice was issued towards short landing after a period of six years, and the petitioner contended that, eventhough Section 116 of the Act does not provide any minimum period of limitation, the Courts have repeatedly interpreted the provision to the effect that the levy should be made within a reasonable period and in accordance with the rulings, a maximum period could be only five years and not more. This contention was accepted by the Court and it was held that the Authority has to exercise powers within a reasonable period, and, what would be the reasonable, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharge, and therefore, the decisions referred to by the petitioner are distinguishable. One more contention being that, if the steamer agent was of the view that, Import Manifest or Import Report is in any away incorrect or in complete, they should have taken steps to amend the same. They having not done so, the petitioner should be made to pay penalty. In this regard, the decisions of the Hon'ble Division Bench, in i) Chowgule Brothers (supra) and ii) Caraval Logistice Pvt. Ltd., (supra) were referred to. 27. The underlying principle in all the decisions is that, though an Authority, exercising power under the statute can do so, and if such an action has the effect of disturbing rights of a citizen, it should be done within a reasonable time, even if period of limitation is not stipulated under the relevant statute. What is required time would depend upon the facts and circumstances of each case. Thus, bearing the legal principle in mind, it is absolutely necessary to examine the factual matrix of the case. 28. As mentioned earlier, the cargo was a bulk urea, weighing 30,000 MTs and the vessel came to the Port at Cuddalore, which is an anchorage port. The discharge of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarge, which is found to be unreasonable in all the decisions referred to above. The penalty, which was imposed by the Adjudicating Authority and confirmed by the Appellate Authority was twice the shortage. On revision, the first respondent/Government of India noted that, there is nothing on record to show that the petitioner is intentionally or actively responsible to the said short landing in goods, and having rendered such a finding, the first respondent ought to have exercised its powers, and deleted the entire penalty. In other words, the first respondent was satisfied that there is no mens rea on the part of the petitioner. The nature of cargo, Bills of Lading, time taken for completing the discharge, where all reckoned by the first respondent/Government of India and was convinced to hold that the petitioner was not intentionally or actively responsible for the short landing. 32. Therefore, I have no hesitation to hold that the inordinate delay in concluding the adjudication proceedings is unreasonable. Further, the Revisional Authority, Government of India, having found that, no blame can be fastened on the petitioner for intentionally being the cause for the short landi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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