TMI Blog2002 (8) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ties, wherein penalty under Section 116 of the Customs Act, 1962 has been levied upon the Petitioners for the alleged short landing of the cargo. 2.The brief facts having bearing of the subject matter of the present petition, are as under : The Petitioners at the relevant time were the agents of the Foreign Flag Vessel namely "SCHELPWIJK" which had called at the Port of Kandla on 7th January, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be imposed upon them under Section 116 of the Customs Act, 1962. The Petitioners replied to the said show cause notice contending that the shortage based on the outturn report of the shore tank measurement cannot be the basis for ascertaining the short landing and the quantity of shortage has to be determined on the basis of the quantity measured as per the ullage report. However, by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Member (Technical). Thus, in view of the majority decision the penalty determined on the basis of shore tank measurement was upheld and the appeal was rejected in toto. Being aggrieved by the aforesaid order, the present Writ Petition has been filed. 3.The issue as to whether the short landing of the cargo from the vessel is to be determined on the basis of the ullage report or on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and not on the basis of shore tank measurement. In view of the aforesaid decisions of this Court, with which we concur it has to be held that the penalty levied upon the Petitioner by determining the shortage on the basis of shore tank measurement taken at the shore tank which is situated at a distance of 14 kilometers away from the Kandla Port is erroneous. 4.The contention of the Revenue th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating authority as well as the appellate order are quashed and set aside. The respondents are at liberty to pass fresh order of penalty by determining the short landing of cargo based on ullage report and after giving credit for the shortage permissible under the law. The respondents shall pass fresh penalty order after giving personal hearing to the Petitioners on or before 31st Decembe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
