TMI Blog1988 (9) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... s 3027.997 metric tonnes as will appear from the loading parts Time Sheet issued by the Master of the vessel and countersigned by the shipper. After completion of the loading the said vessel proceeded to port of Calcutta and reached the said port on or about 24th March, 1982 where she was berthed at 'C' Netaji Subhas Docks for discharging her cargo. The cargo was pumped out of the vessel's tanks and was carried by means of flexible holes supplied by the consignees and poured into the shore tank of Indian Molasses Co. Pvt. Ltd., the respondent No. 3 at Ramnagar. After the tallow having been discharged from the said vessel had been poured into the said shore tank, the measurement of the quantity received in the said shore tank was taken by the petitioner's surveyor and also by the surveyor appointed by the consignees. The result of such measurement taken by the petitioner's surveyor was 2967.314 metric tonnes whereas according to the measurement of the consignee's surveyors it was 2961.931 metric tonnes. It is to be noted that the said shore tank was partially filled with tallow from other sources before tallow from the said vessel was inducted therein. According to the petitioner th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. But the Deputy Collector of Customs the Respondent No. 2 arbitrarily rejected the petitioner's contention and imposed of penalty of Rs. 48,621 for the alleged shortlanding of 69.847 metric tonnes of the said Cargo. Being aggrieved by and dissatisfied with the said action the petitioner preferred an appeal before the Collector of Customs (Appeal) but by the order dated 1st May 1986 the Respondent No. 1 rejected the said appeal and affirmed the said order of the Respondent No. 2. It appears from the said appellate order that the Respondent No. 1 did not at all consider the petitioner's contention that the measurement of the cargo made on board the said vessel before the cargo was pumped out was a relevant evidence as to the quantity discharged from the ship and in the circumstances of the instant case was better evidence than the measurement taken after the cargo had been discharged into the shore tank of the Indian Molasses Co. Ltd. The respondent No. 1 erroneously held that the shipper's weight inserted in the bill of lading was conclusive as regards the weight of the cargo shipped. It would appear that the Respondent No. 1 not seriously apply his mind to any of the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te appearing for the petitioner and Mr. Debal Banerjee the learned Advocate for the contesting respondents. On behalf of the petitioner the decision of the Calcutta High Court reported in Eastern Law Reports Vol-I page 93 Scindia Navigation Company Ltd. v. Joint Secretary, Govt of India has been cited. It has been submitted that Sabyasachi Mukherji, J., as His Lordship then was, in a similar proceeding under Section 116 of the Customs Act has observed that in considering as to whether the petitioner has sufficiently explained the shortlanding it is necessary to consider the whole evidence on record. It has also been observed that the outturn report and manifest are the relevant pieces of evidence and are to be taken in conjunction with other pieces of evidence, such as surveyors report the conduct of the parties, the chemical analysis report and also the fact that there are any other types of goods in the ship. As according to the learned Judge, the respondent authorities proceeded on erroneous view of law and if on such erroneous view of law, a fact finding body comes to a conclusion then the concerned authority commits an error of law. It is apparent on the face of the record and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t given in the Bill of Lading and the measurement made by the surveyor of the Customs Department in the shore tank. It is submitted that under Section 116 of the Customs Act, 1962 the liability of the Steamer Agent for the shortlanding of goods is penal in nature and it is therefore incumbent upon the Collector to record a finding on considering all the circumstances as to whether the petitioner failed to account for the deficiencies to his satisfaction. 7. I have considered the order passed by the Deputy Collector of Customs and that by Collector of Customs in appeal. The Deputy Collector of Customs does not appear to have given any consideration to all the relevant materials produced before him. I am of the view that only because the shortlanding was recorded by the surveyor of the customs in the shore tank, the Deputy Collector could not mechanically impose the penalty on the basis of the alleged shortlanding. Mr. Roy Mukherjee submits that the consignee who had taken delivery of the imported tallow never had any grievance against the petitioner for the alleged shortlanding. The shortlanding according to him was not real shortlanding, and nothing but a paper shortlanding, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and of the consignee. Provisions under Section 116 of the Customs Act are penal in nature. From the decision of our High Court referred to me, I am satisfied that all the relevant evidence have to be considered by the Customs authority before imposing a penalty under Section 116 and if the Customs authorities are found to impose the penalty mechanically only on the basis of the difference in measurement given in the Bill of lading and that in the survey report of the customs then I am of the view regard being had to the facts and circumstances of the case, the order passed by the Respondent Nos. 1 and 2 should be interfered with by this court and the authority concerned should be directed to consider afresh all the contentions raised by the writ petitioner and on considering all the evidence produced before the concerned authority, the concerned authority will be at liberty to pass appropriate order. The writ petition is thus allowed. The impugned orders passed by the Respondent Nos. 1 and 2 are hereby quashed. The Respondent No. 2 being the Deputy Collector of Customs shall again give a personal hearing to the petitioner and considering all the relevant evidence alr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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