TMI Blog2002 (7) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... on business as Agents for foreign flag vessels calling at the Port of Bombay. At the material time, the Petitioners were Agents of the foreign flag vessel "PRESIDENT ROOSEVELT". The said vessel called at Bombay in or about the second week of August , 1979 with general cargo in containers, full container load (F.C.L. containers) as well as less than the container load (LCL container) for discharge at Bombay. On arrival of the said vessel, the Petitioners had to file necessary Import General Manifest (IGM) and the vessel commenced discharging her cargo on 12th January, 1979 and completed her discharge of vessels by 16th August, 1979 and sailed from Bombay soon thereafter. According to the petitioners, the vessel discharged all the cargo manif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners to show cause as to why penalty under Section 116 of the Customs Act should not be levied on the basis of the outturn report of the Bombay Port Trust. The Petitioners pointed out to the Respondents that as per the order passed in Writ Petition No. 2527 of 1986 it was obligatory on the part of the Petitioners not to hold the Petitioners responsible for the alleged shortlanding merely on the basis of the outturn report. It was pointed out that at the time of unloading of the container from the vessel its seal was intact and that at the time of destuffing of the container much later in the Bombay Port Trust docks if there was no seal, then the Petitioners cannot be held responsible and the alleged shortlanding cannot be attributed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the liability was to be fastened on the Petitioners, then it was obligatory on the part of the Respondents to adduce evidence to the effect that at the time of discharge of the containers from the vessel the seals were not intact. It was submitted that as per Section 45 read with Section 2(34) of the Customs Act, 1962 it was evident that the Bombay Port Trust was under a statutory obligation to send a copy of the tally sheet to the proper officer, i.e. the officer of the Customs regarding the conditions of containers and discharge from the vessel. It was submitted that the Respondents could not have kept back the tally sheet with them and purported to levy penalty on the Petitioners solely on the basis of the outturn report of the Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief in the present petition. 7. Having heard the Counsel on both the sides and after perusing the records placed before us, we are of the view that the order impugned in the petition cannot be sustained at all. This Court by its order dated 4th October, 1986 in Writ Petition No. 2527 of 1986 had set aside similar order passed by the Respondents against the Petitioners wherein the penalty was sought to be levied solely based on the outturn report. When the matter was sought to be remanded it was obligatory on the part of the Respondents to base their claim on any material other than the outturn report. As pointed out by Mr. Gomes, learned Counsel for the Petitioners, it was statutory obligation on the part of the Port Trust to serve a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner in the presence of Customs Officer. In the instant case the containers have already been unloaded from vessel and while the containers were lying in the Bombay Port Trust, it was found that the seals were broken. In that event any survey taken after the containers were discharged from the vessel cannot be taken into account and arrive at a conclusion that on the date of discharge of the container from the vessel, the seals were broken. In our opinion the guidelines given by the learned Single judge in the case of Shaw Wallace Co. Ltd. (supra) would be applicable to the goods which are to be off-loaded from the vessel thereafter and it cannot be made applicable to the container which are already unloaded from the vessel. Failure or ina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in custody of the tally sheets and even if the Petitioners might be having a copy of the tally sheet and if they are unable to produce the same, the liability cannot be fastened upon them, when primarily it is the duty of the Customs Authorities to produce the same. Under the circumstances, in our opinion the alleged shortlanding based solely on the basis of the outturn report of the Bombay Port Trust at the time of discharging the cargo from the containers cannot be attributed to be shortlanding at the time of discharging of the container from the vessel. In this view of the matter, the impugned order dated 29th November, 1986 (Exhibit 'J' to the petition) cannot be sustained, and the impugned order dated 29th November, 1986 (Exhibit 'J' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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