1. The Scindia Steam Navigation Co. Ltd., 15, Park Street, Calcutta-700 010 had filed a revision petition before the Additional Joint Secretary, Govt. of India, Ministry of Finance (Dept of Revenue), New Delhi, being aggrieved from Order No. 1324/80 dated the 21st day of July, 1980 passed by the Appellate Collector of Customs, Calcutta.
After the coining into existence of the Tribunal the said revision petition stands transferred to the Tribunal in terms of the provisions of Section 131B of the Customs Act, 1962 and is being disposed of as an appeal.
2. Briefly the facts of the case are that the vessel M.V. Jaladharma carried a consignment of 3 packages equipments from Odessa to Calcutta on account of the Bokaro Steel Ltd., Calcutta in respect of Line No. 52 Rot No. 707/44.The Port Trust of Calcutta had reported shor-landing of one package equipment. The learned Assistant Collector had asked the appellant to explain why penal action should not betaken against him under Section 116 Of the Customs Act, 1962 for the short-landing. The Steamer Agents in their explanation admitted the short-landing and the records show that the consignee was granted refund of duty against the short-landing. The learned Assistant Collector had imposed a penalty of Rs. 28,600.00 under Section 116 of the Customs Act, 1962. Being aggrieved from the aforesaid order the appellant had filed an appeal before the Appellate Collector of Customs, Calcutta. The learned Collector (Appeals) had observed in his order that the short-landing having been established, the consignees were granted a refund of Rs. 28,552.87. He had also observed that two Rollers found as per survey report as damaged were not intended to be cleared by the consignees.
The copy of the survey report and the claim bill of the consignee do not conclusively prove that the two rollers are identical to account for the short-landing, The learned Collector (Appeals) had observed that the identity of the goods could not be established and had dismissed the appeal. Being aggrieved from the aforesaid order the appellant has come in appeal to this Court.
3. Shri G.R. Jagtiani, Asstt. Manager of the appellant Company has appeared on behalf of the appellant and has reiterated the arguments made in the revision petition. He has pleaded that the value of the item is about Rs. 70 000.00. He has pleaded that the appellant's appeal should be accepted in view of the arguments made in the revision petition. He has also referred to a judgment of this Court in the appeal No. CD (T) Cal-43/80, Order No. 372/Cal/83-2266 and has pleaded that the appellant's appeal should be accepted.
4. In reply Shri A.K. Chatterjee, the learned J.D.R. has referred to para 1 of the order passed by the Collector (Appeals). He has pleaded that the learned Collector (Appeals), Customs had rightly passed the order and there is no co-relation and identity of the goods. Ht has further pleaded that the judgment of the Calcutta Bench cited by the appellant does not help him at all in any way as all the ingredients are missing and the facts of that judgment are different.
5. After hearing both the sides and going through the facts and circumstances of the case I find that the arguments of the learned authorised representative do not help him at all in any way. The facts of the judgment Cited by this Court are quite different. In that case the excess cargo was examined by the Insurance Company and the Engineers of the consignees. In that case the Insurance Company had certified that the marks & Nos. tallied and the package in question was also examined by the Engineers of Bokaro Steel Ltd. on the request of the Insurance Company and the representative of the consignees had accepted that the said package had been certified to be the same which was short-shipped package with reference to Bill of Lading, Rot No & Line No. and the consignees bad accepted all the facts and there was corroborative evidence. The earlier judgment of this Court referred to by the appellant was passed on the basis of the judgment of Hon'ble Calcutta High Court in the case of The Scindia Steam Navigation Co.
Ltd., Calcutta Vs. Joint Secretary, Govt. of India in Matter No. 1393 of 1981 decided on 12th day of May, 1982 by Hon'ble Mr. Justice Sabyasachi Mukherji. The Hon'ble High Court had held that the short-landing is the very basis of attracting the provisions of Section 116 of the Customs Act, 1962. The out-turn report and the manifest are the relevant pieces of evidence and are to be taken in conjunction with other piece of evidence, viz., 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. In this case there is no co-operation from the consignee and there is no co-relation of the goods and there is no corroborative evidence. In the result I confirm the findings of the lower authorities and also confirm the imposition of penalty of Rs. 28,600.00. The appeal filed by the appellant is dismissed.