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Southern Sea Foods Pvt. Ltd. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Reported in(1986)(6)LC537Tri(Mum.)bai
AppellantSouthern Sea Foods Pvt. Ltd.
RespondentCollector of Customs
Excerpt:
.....of duty.3. when this appeal was taken up for consideration none appeared for the appellants.4. shri gidwani for the respondent collector reiterated his contentions urged in appeal no. 165/80 - star textile engg. works ltd. v. collector of customs 1985 (22) elt 552 (tribunal). in addition he contended that the ratio of that decision cannot be applied to the present case. he urged that in the star textile's case short landing had been established but in the present case short landing cannot be said to have been established by reason of two certificates issued by the bombay port trust on the same day viz. on 5-8-1981. shri gidwani pointed out that in one of the certificates of the b.p.t. it is remarked 'as there are several other similar marked consignments manifested in the same igm of.....
Judgment:
1. The revision application filed before the Government of India against order-in-appeal bearing No. S/49-1702/81M, dated 5-11-1981 passed by the Collector of Customs (Appeals) Bombay, statutorily stood transferred to the Tribunal for being heard as an appeal.

2. The appellant's claim for refund of duty on short landed goods was rejected by the Assistant Collector as well as by the Appellate Collector as barred by time, in that, the refund application was made after expiry of 6 months from the date of payment of duty.

3. When this appeal was taken up for consideration none appeared for the appellants.

4. Shri Gidwani for the Respondent Collector reiterated his contentions urged in Appeal No. 165/80 - Star Textile Engg. Works Ltd. v. Collector of Customs 1985 (22) ELT 552 (Tribunal). In addition he contended that the ratio of that decision cannot be applied to the present case. He urged that in the Star Textile's case short landing had been established but in the present case short landing cannot be said to have been established by reason of two certificates issued by the Bombay Port Trust on the same day viz. on 5-8-1981. Shri Gidwani pointed out that in one of the certificates of the B.P.T. it is remarked 'As there are several other similar marked consignments manifested in the same IGM of the subject vessel. Therefore the above packages cannot be specifically assigned to the item under reference.' 5. I have considered the submissions made by Shri Gidwani and perused the records of the case. In appeal 165/80 and earlier appeals this Bench had held that provisions of Section 27(1) are not applicable to short landed goods. Therefore, the only question requires to be considered in this appeal is whether the appellants have satisfactorily established the fact of short landing of one of the package. As has been stated earlier, the contention of Shri Gidwani is that there was no satisfactory evidence as to the fact of short landing of one of the packages. He relied upon the certificate referred to earlier. In the records of the appeal, I also find another certificate which is styled as "short landing certificate'. It is also dated 5-8-1981. In this certificate the custodian of the goods, viz., B.P.T. had clearly stated that number of packages in Bills of Entry was 19 and number of packages landed 18 and short landing was one. Marks and numbers were also given.

The document referred to by Shri Gidwani though bears the same date is not styled as short landing certificate. It is landing remark certificate. Just because both the certificates bear the same date one cannot doubt about the short landing. Under Section 45 of the Customs Act, the custodian is required to keep a record of the goods received and send a copy thereof to the proper officer. There is no dispute that the B.P.T. is the custodian of the goods landed in the Customs area.

The custodian had issued a certificate styled as short landing certificate wherein packages shortlanded, with marks and numbers had been mentioned. I have no reason to doubt the authenticity of that certificate. Though the landing remark certificate and short landing certificate are dated 5-8-1981, the possibility of short landing certificate having been issued after the landing certificate cannot be ruled out. As a matter of fact from the perusal of the two documents I find that the landing certificate on which Shri Gidwani relied was signed by the Assistant Manager, Central Documentation Office, Indra Dock whereas the short landing certificate had been signed by the Deputy Manager, Indra Dock. It is quite possible that after the Assistant Manager issued landing certificate there was further verification at the Deputy Manager's level. The Deputy Manager must have been satisfied as to the short landing or else one cannot expect him to issue short landing certificate.

6. I am satisfied that this is a case of short landing and therefore the ratio of the decision in the Star Textile case applies.

Accordingly, I allow this appeal, set aside the orders passed by the authorities below and direct the Customs authorities to grant consequential relief to the appellants.


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