TMI Blog1986 (4) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... d G-10. The notice was duly replied and the same resulted into adjudication by the Assistant Collector of Customs. By a short order dated 8-8-1966, the Assistant Collector of Customs imposed a penalty of Rs. 92,307.26 under Section 116 of the Customs Act, 1962 for shortlanding of the goods covered by the items mentioned above. 3. Dissatisfied with the aforesaid order, the petitioner-company preferred an appeal before the Central Board of Excise and Customs, New Delhi. Before the hearing of the appeal, the petitioner-company had been able to clarify with the Commandant regarding the clearance of certain items for which the penalty was imposed. As a consequence out-turn report prepared by the Bombay Port Trust had also been amended. Considering the amended out-turn report the Central Board of Excise and Customs partly allowed the appeal and reduced the penalty from Rs.92,307.26 to Rs. 45007/- and remitted the balance. The petitioner-company preferred a further revision petition to the Central Government. The Central-Government kept the revision petition pending for a sufficient time in order to enable the petitioner-company to have the out-turn report further amended by the Port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inued to show these as short landed. In certain cases, the Commandant had specifically intimated the linking of certain items but in spite of that the Port Trust Authorities insisted on proper documents from the Commandant which the Commandant was unable to provide and as a result the out-turn reports were not amended. The carriers had, therefore, to face the penalty imposed on them. Respondents Nos. 1 to 3 were bound by the provisions of Section 116 of the Customs Act, 1962 which is to the following effect :- "116. Penalty for not accounting for goods. If any goods loaded in a conveyance for importation into India or any goods transhipped under the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity 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, the person in-charge of the conveyance shall be liable, - (a) in the case of goods loaded in a conveyance for importation into India or goods transhipped under the provisions of this Act, to a penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notes have been prepared while despatching to depots as was normally done. The Embarkation Commandant had absolutely no records of the number of packages cleared without any documents and the shortages were arrived at following a process of reconciliation which was attempted after 2/3 years of clearance..............." "The Docks Manager also conceded that the Port Trust had not maintained a shipwise and markwise record of what was delivered to the Embarkation Commandant...................." "In view of the aforesaid minutes and other meetings, it was decided by the Central Government to reduce the penalty to the extent of 25%. During the course of arguments another memorandum was placed before me wherein the Government had decided to reduce the penalty by further 25% over and above the 25% already allowed." 6. From the facts aforesaid it is obvious that the respondents have taken the view that once the out-turn report filed by the Port Trust indicates any shortlanding, it is mandatory to impose the penalty under Section 116 of the Customs Act on the carrier. 7. The petition has been contested by the respondents but no counter-affidavit has been filed by respondents 1 to 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea, whether under the provision of sub-section (1) or under any law for the time being in force,- (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer." 9. The aforesaid section provides that all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Collector of Customs until they are cleared for home consumption and a complete record of the goods has to be maintained by the said person. The removal can be permitted in accordance with the permission in writing of the proper officer. The proper authority and the proper officer obviously means the Port Authority in the circumstances of the present case. It was in fact the responsibility of the Port Authority to maintain proper records and not to allow the removal of the goods except after proper documentation. However, in the circumstances of this case probably it was not possible even for the Port Authority to comply with the provisions of Section 45 of the Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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