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TMI Blog1992 (6) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned Steamer Agents, M/s. The Scindia Steam Navigation Co. Ltd. Cal. 16 were accordingly called upon to account for and explain as to why penal action under Section 116 Customs Act, '62 should not be taken against them for the cargo landed short. The Steamer Agent in their explanation stated that according to Port Trust O.T.R. of 13-11-1973, 630 Bags Ammonium Nitrate Phosphate were landed from the vessel as sweepings and those were cleared by M/s. The Food Corpn. of India Ltd. In support of their contention they also submitted a photostat copy of the consignees letter dated 23-8-1976. 3. Considering the Steamer Agents' explanation the Dy. Collector of Customs observed as follows : "that even after several correspondences and enjoying all reasonable time and opportunity the Steamer Agents have failed to explain the shortlanded cargo to the extent of 821 bags satisfactorily. I also observe from the records that the consignee was granted refund against the shortlanding. The shortlanding is, therefore, established and Steamer Agents are liable to penal action under Section 116 of Customs Act,'62." 4. The Deputy Collector of Customs also imposed on the Steamer Agents, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood Corporation of India, specifically stated that 630 bags of A.N.P. sweepings have been removed to JJP and weight of these bags is 52 MT. 9. Further by letter dated 20th May, 1980 from Food Corporation of India to M/s. Scindia Steam Navigation Co. Ltd. that the District Manager, (Docks) stated that "630 bags of sweepings excaptioned vessel against Rot No. 698/73 Bill of Entry No. GSI-55 of 20-11-1973 Line No. 1 weighing 52 MT were cleared to our JJP Dept. on 30-11-1973 against landing of the cargo ex vessel. No shortlanding claim in respect of ANP was filed against the owner since there was no shortlanding." 10. The Survey Report dated 14th February, 1974 is set out herein below REPORT OF SURVEYS held on 12th Feb. 1974. Line No. 1 Rot No. 698/73 Landed Ex. On Goods Sod 27-11-1973 No. 1243 SS. "Jalagirija" Ard 18-10-1973 Surveyed at 'B' NSD Marks & Nos. Contents and result of Survey. Nil 630 gunny bags stated to contain Ammonium Nitrate Phosphate Sweepings were passed over the Port Commissioners' Weigh Bridge and Weight recorded 52,000.00 kg. "Surveyed without preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vessel the Port Trust issued the outturn report recording shortlanding of 821 bags out of the manifested quantity of 1,20,380 bags. Calcium Ammonium Nitrate Phosphate. The Outturn Report at the same time also recorded landing of 630 bags Sweepings of Ammonia Nitrate Phosphate ex there vessel. 14. Since the vessel carried only one consignment on account of Messrs. Food Corporation of India it was clear that the sweepings were a part of the cargo carried by the vessel and the same belonged to Messrs. Food Corporation of India. Messrs. Food Corporation of India had actually carried the sweepings as usual after necessary survey of the sweepings being carried out by the surveyors Messrs. Norman Stewart & Co. 15. Messrs. Food Corporation of India had duly confirmed vide their letter No. FCI/Dock/OP/GENL/76 dated 23-8-1976 addressed to the Steamer Agents that a total of 630 bags sweepings equivalent to 52 m. tonnes were cleared by them in this connection. 16. The Port Trust Outturn Report has clearly recorded landing of 630 bags Ammonium Nitrate Phosphate Sweepings from the vessel and the consignees letter indicate that the sweepings were surveyed, weighed and cleared from the Port pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by sea. The Deputy Collector of Customs imposed penalty on the petitioner for shortlanding of 151 sacks cellulose acetate manifested against line No. 16 ex S.S. Jalakrishna. The petitioner preferred an appeal against the said order of penalty before the Appellate Collector of Customs who confirmed the previous order. The petitioner thereupon moved a revision application to the Central Government which rejected it. Thereafter the petitioner moved the High Court under Art. 226 of the Constitution challenging the orders passed by the authorities aforesaid. 24. In the aforesaid decision Section 116 of the Customs Act, 1962 was considered and Sabyasachi Mukharji J. as his lordship then was in paragraph 8 at page 98 of the said Report observed as follows : "An Analysis of this section would make it clear that the liability of the section would be attracted if any goods loaded in a conveyance for importation into India or any goods transhipped under the provisions of that Act or coastal goods carried in a conveyance were not unloaded at their place of destination in India or, if the quantity unloaded was short of the quantity to be unloaded at that destination. Therefore, the ingredient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablished ex facie by the out-turn report itself. The outturn report is certainly a piece of evidence which should be taken into consideration. But that by itself is not conclusive evidence which throws the burden of proof on the other side that the goods in question were shortlanded. It appears to me that in proceeding on that basis, that is to say, as if the outturn report established prima facie that the goods in question were shortlanded and in judging the question from that point of view the authorities concerned proceeded on an erroneous basis under Section 116 of the Act. It is true, as I have emphasised before, the outturn report and manifest are the relevant pieces of evidence and are to be taken in conjunction and with other piece of evidence viz. the survey report the conduct of the parties, the chemical analysis report and also the fact that there is any other types of goods in the ship. It is nobody's case that there were any other types of goods in the said ship. Therefore, in not so doing, it appears to me that the respondent authorities proceeded on an erroneous view of law and on such an erroneous view of law, if a fact finding body comes to a conclusion then conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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