1. This is an appeal transferred to the Tribunal under Section 131-B of the Customs Act. The appellants have argued that there has been no short landing of the two packages as reported in the Bombay Port Trust Out-turn report dated 20-12-73 for S.S. Jalamoti IGM. No. 1172 of 20-12-73 on the grounds that the consignees have not claimed reparations from the steamer agent and according to the information with them, they have also not claimed the refund of duty on the alleged short landing of two packages from the Customs department. In other words, the appellants challenge the authenticity of the out-turn report dated 20-12-73. They, further, submit that the penalty levied on them is on the basis of average duty payable on. 2 packages in the consignment consisting of 56 packages, and that it is quite possible that the short landed packages would involve less duty than that worked out by the Customs on average basis. During the course of the hearing of the appeal, the learned Advocate has pointed out that only 53 packages have been landed as per the out-turn report and not 54, if the serial numbers of the packages mentioned in the out-turn report are counted. He has, therefore, implied that the out-turn report is not reliable. He has made further submissions that the efforts made by M/s.
Scindia Steam Navigation Co. Ltd. to elicit a reply from consignees M/s. Fertiliser Corporation of India Ltd. to get the confirmation as to whether the consignment was received by them in full have failed, and therefore the Tribunal should summon them to produce their records and to confirm whether all the 56 packages were received by them, or not.
The learned Advocate has filed copies of the letters written by the Steamer agents to the consignees and has requested to take them on record. Under the aforesaid grounds, he has claimed relief from the penalty levied by the Dy. Collector of Customs, Bombay. The departmental representative has emphasised that the Port Trust report shows that two packages are missing and in absence of any documentary evidence about the value of the contents of the missing packages, the penalty on the steamer agents has been correctly worked out on pro-rata basis by the Dy. Collector. He has also pointed out that the fact of short landing stands confirmed and therefore there is no case for grant of any relief to the appellants.
2. We have examined the submissions. In this case the short landing is established, by the out-turn report of the Bombay Port Trust. The Bombay Port Trust are the bailees of the cargo and the steamer agents have to discharge the cargo in their custody. From that time, the cargo remains under the custody of the Bombay Port Trust and the Bombay Port Trust give the delivery of the cargo to the importer. The Bombay Port Trust records by way of out-turn reports are treated as authentic.
However, in the present case the Advocate wants us to disbelieve the Bombay Port Trust's out-turn report and wants us to prove that the same is false. For this purpose, he has requested us to exercise the powers vested in the Tribunal under Section 129-C(7) (c) of the Customs Act.
We are afraid, we cannot be tools in the hands of the appellants to investigate and prove the inaccuracy of the Port Trust out-turn report merely on the presumption of the appellants that the same is false.
Accordingly, we cannot concede this request. The appellants have also stated that if the Sr. Nos. of the packages shown to have been landed as per the out-turn report are counted, the total number of packages shown as landed, would come to 53 and not 54. The appellants, therefore, contend that the out-turn report is not reliable. We find that this submission of the appellants is also not correct. The Sr.
Nos. of the packages landed as per the out-turn report would show that 54 packages were landed and that two were not landed. This would, further, show that there is no reason to disbelieve the correctness of the outturn report. The Dy. Collector of Customs has worked out the penalty on the value of short landed packages on pro-rata basis in absence of any other acceptable evidence regarding the actual value of the short-landed packages. In view of the foregoing circumstances, we find that the orders of the lower authorities are correct and fair. The same are confirmed and the appeal is rejected.