TMI Blog1982 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ayana and Company, Kakinada, who are the agents for the Ship `AKIKO' at Kakinada. The vessel `Akiko' called at Kakinada port on 3-1-1967. The ship discharged her cargo from 17-1-1967 to 2-2-1967. Thereafter, the ship sailed away from Kakinada. The ship was permitted to leave the port on the basis of an undertaking given by Messrs. Savitru and Company making it liable for the performance of all the obligations to be performed by the Master of the Ship `Akiko'. According to the Manifest, the Master had to deliver certain amount of Urea, but the actual delivery fell short by 802 bags. Messrs. Savitru Company admitted a shortage of 197 bags out of these 802 bags.?? Messrs. Savitru Company's case is that the balance of 605 bags of Urea was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity unloaded is short of the quantity to be unloaded at that destination, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the Assistant Collector of Customs. In such a case, the person-in-charge of a conveyance shall be liable to pay a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods. The customs authorities at Kakinada have held that the deficient goods makes the Master of the ship liable to pay the penalty under Section 116, imposed a penalty of Rs. 5,000/- and held Messrs. Savitru Company liable to pay the amount in terms of its undertaking executed under Section 42 of the Customs Act. Against the order imposing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ags of Urea and according to the import Manifest for the deficient goods the Captain of the ship is liable to pay the penalty. I cannot, therefore, accept this submission of the petitioner that the import Manifest is reduced by the acceptance of the petitioner's explanation and that the liability of the ship stood reduced to that extent. This point is accordingly rejected. 3. The next point is; even assuming that the ship was liable to be penalised under Section 116 of the Customs Act for the deficient goods, it was argued that once the Customs Collector at Kakinada had imposed penalty only on 197 bags of Urea and the Customs authorities have not preferred any appeal to the appellate authority against that order of the Customs Collector, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus : "Any person aggrieved by any decision or order passed under this Act, may appeal to the Board." 4. Section 128, clause (2) is the crucial section. It says : "The Appellate Authority may, after giving an opportunity to the appellant to be heard, if he so desires, and making such further inquiry as may be necessary, pass such order as it thinks fit, confirming, modifying or annulling the decision or order appealed against : Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall not be passed by the Board unless the appellant has been given a reasonable opportunity of showing cause against the proposed order." I must frankly say that till the last time I am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectly ligitimate for the Board to modify the order already passed or the decision already taken and then enhance the penalty imposed. For this purpose, I am prepared to agree with Mr. K. Subrahmanya Reddy's contention that the word "modify" in Section 128, clause (2) need necessarily to "reduce" only. But it can be taken even to increase the penalty or enhance the penalty in the context of the proviso to Section 128 clause (2) which expressly speaks of enhancement in penalty. This appears to me not as an unreasonable construction to be placed upon the word "modify" occurring in Section 128. If the Department has field in this case an appeal complaining against the imposition of Rs. 5000/-. The appellate authority could have modified that de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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