1. Appeal under Section 129 of the Customs Act, 1962, praying that in the circumstances stated therein, the Tribunal will be pleased to order refund of duty paid on goods short landed.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri S. Venkataraman, Advocate for the appellants and upon hearing the arguments of Shri S.K. Choudhury, Senior Departmental Representative for the respondent, the Tribunal makes the following: 3. By his order No. 57/78-79 C. 3 dated 27.8.79, the Assistant Collector of Customs, Mangalore, rejected a claim for refund of duty on 96.916 MT of urea paid under Bill of Entry No. 31 dated 20.6.78, imported ex m.v. ARADHANA in 1978. It was contended before him that Port authorities are the custodians of imported goods as per Rule 82( 1) of the New Mangalore Port Rules, 1976 issued under Section 5(2) of the Indian Ports Act, 1908; a certificate of port out-turn statement issued by them may be accepted as proof of landed quantity of cargo.
The Assistant Collector found that at the relevant time the port authorities were not custodians of goods. When the matter was agitated in an appeal with the Appellate Collector of Customs, Madras, he found that the port authorities did not in fact accept any responsibility as custodians of goods; at the relevant time, the practice at the New Mangalore Port was to store the imported cargo in the port trust shed at the risk of the owners. He also noted that in respect of chartered vessels, the Master of the vessel holds a responsibility to specifically indicate how the shortage arose. The appellants had given a clear receipt for the quantities manifested. He rejected the appeal under his order No. C 25/AP/28/1979 dated 15.10.80.
4. Aggrieved by the order of the Appellate Collector the appellants filed a revision application before the Government of India in December, 1980: it has been transferred to the Tribunal to be heard as an appeal in terms of Section 131B of the Customs Act, 1962.
5. Before us, the learned Counsel for the appellants stresses the responsibility of the Traffic Manager, New Mangalore Port under Rule 82(1) of the New Mangalore Port Rules, 1976 and urges us to presume that the Traffic Manager was acting in accordance with law.
6. The learned Senior Departmental Representative for the respondent, however, disputes this stand and refers to circular No. 35/9/82 TGA. 4 dated 7.1.1983 issued by the Chairman of the New Mangalore Port Trust, indicating that "the New Mangalore Port Trust will assume custody of imported goods on or from 1st February, 1983". He also relies on a letter No. VIII/48/132/79 C 2/Cus. dated 29.1.82 written by the Collector of Customs and Central Excise, Bangalore, (having supervisory control over the New Mangalore Port) to the Central Board of Excise and Customs, wherein he has pointedly brought to the notice of the Board the fact that "the Mangalore Port Trust authorities were refusing to be custodians of imported goods under Section 43(1) of the Customs Act, 1962 on the ground that the Major Port Trusts Act has not been made applicable to the said New Mangalore Port. This fact was brought to the notice of the Board as early as in 1979 vide this office d.o. letter of even number dated 20.9.79 addressed to Shri P.K. Kapur, wherein it was suggested that the matter may be taken up with the Ministry of Shipping and Transport to solve the impasse." Thus, both by implication, as seen from the circular of the Chairman of the Port Trust, and by direct statement contained in the letter of the Collector, it is clear that at the relevant time the Traffic Manager, New Mangalore Port Trust was not taking custody of cargo, While one could presume, in the absence of evidence to the contrary, that a statutory responsibility is being shouldered by a duly constituted authority, where evidence has been brought on record to show that it was not in fact being done, we cannot draw an inference of the type urged by the learned Counsel for the appellants.
7. In the result, we are left with no particular evidence to show that there was in fact shortlanding of part of the cargo. In fact, as observed by the Appellate Collector, the appellants had given a clear receipt for the quantities manifested. Under the circumstances, the appeal is dismissed.