TMI Blog1991 (11) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... , no affidavit in opposition has been filed. This should have been filed within 4th September, 1991. There is no explanation why this was not done. Moreover, this is an unusual case where the petitioner has been subjected to a penalty for short-landing of goods which took place allegedly on 17th September, 1981. The notice of penalty was issued nearly seven years thereafter on 25th March, 1988. There is no explanation for such inordinate delay. The following four points have been noted in the order of Collector of Customs and Central Excise (Appeals) :- "1. Show cause notice was issued after 7 years when many records of the case with the consignee as well as in the Customs House were lost and so exact position could not be found. 2. Goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for its said voyage from USA to Calcutta. 4. The case of the petitioner is that on or about 17th September, 1981 during unloading of the cargo the Stevedores M. Elias Co. used hooks, a number of bags were torn and a large quantity of sugar spilled over in the holds of the vessel. In the premises, a planning meeting was held of the representatives of the Calcutta Port Trust authorities, the Stevedores, the handling agents and Indian Sugar Industries in the office of the Deputy Docks Manager, Calcutta Port and it was decided, inter alia, that the sweepings would be collected by the labourers and the clearing agents and repacked into 100 Kgs. bag as against standard packing of 50 Kgs. bag. It was also decided that both discharge and han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that the entire goods consigned had landed and had passed out of Customs jurisdiction and that the consignees/their agents had been granted full 'pass out' of the cargo. 8. On the 25th of March, 1988 the petitioner duly received a notice of show cause from the Assistant Collector of Customs asking for show cause why the penalty under Section 116 of the Customs Act should not be imposed on the petitioner. 9. On 9th of August, 1988 an order was passed by the Deputy Collector of Customs, Calcutta imposing a penalty of Rs. 6,58,11,533/- upon the petitioner under Section 116 of the said Act as, according to him, he had "no option but to invoke" the said provisions for alleged shortage which "appeared" to him stood confirmed. 10. On 3rd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case like this, there cannot be any question of imposition of penalty. 14. Moreover, penalty can only be imposed if the failure to unload or the deficiency is not accounted for to the satisfaction of the Assistant Collector of Customs. There is nothing to show that the Assistant Collector of Customs came to a finding about any failure to unload. On the contrary, the finding was that in course of unloading the bags in which the goods were being brought were split up by the goods used by employees of the unloading agents. S.T.C. has not made any grievance. There is no grievance from the Customs department for seven long years. It has been recorded by the Collector of Customs in his order that many of the records of the case were lost. So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonable period. What would be a reasonable period would depend on the facts of each case, and no hard and fast rule can be laid down in this regard." In the instant case also, the short-landing, if any, took place in September, 1981. The show cause notice was issued on 25th March, 1988. Admittedly, some of the records of the Customs department were lost by that time. In my view, there is inordinate and unexplained delay in issuance of the show cause notice after a long lapse of seven years for which no explanation is forthcoming from the respondents. Another curious fact is that the penalty of Rs. 6,58,11,533/- was originally imposed under Section 16 of the Customs Act, which was reduced to Rs. 13 lakhs by the Deputy Collector of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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