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TMI Blog1992 (6) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved by these orders, the respondents went in appeal before Collector (Appeals). 3. In a detailed speaking order the Collector (Appeals) has concluded that the short-landings were not established because no documentary evidence was given to the appellants even though segregation reports, manifests etc. could have provided the same; that the show cause notices are merely cyclostyled notices without any supporting evidence. He also concluded that under Section 116 ibid it is the person-in-charge, who alone can be proceeded against and unless there was a general bond or undertaking as stipulated under Section 42(2)(e) ibid M/s. Air India cannot be held responsible. 4. Feeling aggrieved by the said order-in-appeal Collector of Customs, Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of the personal hearing the learned advocate could not provide any satisfactory explanation as to the scope of the sub-section 2 of Section 148 of Customs Act, 1962. The relevant portion of the sub-section is in the following terms :- (i) Any agent appointed by the person-in-charge of a conveyance and any person who represents himself to any officer of customs as an agent of any such person incharge, and is accepted as such by that officer, shall be ....… 8. The learned advocate Shri Lalit Bhasin was specifically asked as to what was the scope of the conjunctive word "and" in the above sub-section and whether it could be read as "or" which is permissible under law in certain circumstances. The learned advocate replied that the word " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, it is necessary that his agent in India should be made responsible for all the penalties and confiscations. It is clear, therefore, that the person incharge of a conveyance will hardly and is never himself available to carry out all the formalities in regard to and subsequent discharge of responsibility relatable to unloading of goods. Someone else has necessarily to deputise for him. 11. If that such person alone were to be an agent duly appointed by the person incharge of a conveyance, as replied by Shri Bhasin there would be no need to include the words, "any person who represents himself to any Officer of Customs as an agent of any such person Incharge, and is accepted as such by an Officer" under sub-section (2) ibid. A duly auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue thus is replied in affirmative. M/s. Air India are liable under Section 116 of the Customs Act, 1962 even if no bond or authority is filed by person-in- charge. To that extent order-in-appeal is held incorrect and accordingly set aside. 15. As regards the second issue, it is noted that segregation reports and import manifest are main documents on the basis of which short landing can be established. The segregation reports are prepared at the time of handing over the goods to M/s. IAAI (Custodian) and any shortage/excess is recorded in the import manifest. As regards short landing, if the same is not explained to the satisfaction of the proper officer within 7 days show cause notice is issued to the concerned Airlines. However, in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms to have been fixed within a short period of 9 days even without waiting for their reply; that this shows that the Adjudicating Authority was in a hurry. Imposition of personal penalty without giving effective opportunity of being heard is not only violative of natural justice but is also illegal. [J.M. Baxi & Co. v. Assistant Collector of Customs - 1990 (48) E.L.T. 229 (Bom.). Government finds considerable force in this plea. 18. It is trite law that a show cause notice should set out clearly grounds for the proposed action [Maqbool Hussain v. State of Bombay - AIR 1953 S.C. 325]. It has also to be specific and cannot be ambiguous since it brings forth certain adverse consequences to the parties [S.A. International v. Collector of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short landings. It is noted that even in their letter dated 20th of December, 1989 they tried to explain short landing atleast in respect of two airway bills showing that the consignments booked under airway Bill Nos. 098-5071-381 and 098-4956-2925 figuring at Sl. Nos. 13 and 18 of the list annexed to the show cause notices were first shown short landed and therefore compensation was paid to the consignees. But subsequently the goods were traced and handed over to the consignees, who returned the compensation to the respondents. This is a relevant and fully satisfactory explanation qua Section 116 ibid. Sometimes goods may also be damaged in transit or not loaded at all for India & yet compensation may be paid, but no penalty can be imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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