1. This appeal arises out of Order-in-Appeal No. CAL/CUS/88 of 1981 dated 4-6-1981 passed by the Appellate Collector of Customs, Calutta by which he confirmed the imposition of penalty on short-landed goods by the Asstt. Collector of Customs, M.C.D. in his Order (Original) Survey 663/77 dated 5-8-1980.
2. The brief facts of the case are : In the insurance survey held at 10 K.P.D. on 27-10-1977 some contents of the packages covered by Bill of Entry No. DI 725 dt. 17-12-1977 were found short. The appellants, who are the Steamer Agents, were called upon to show cause as to why penalty should not be imposed on the shortlanded goods. After hearing the appellants, the Asstt. Collector, M.C.D. imposed a penalty of Rs. 6,100/- under Section 116 of the Customs Act 1962. Being aggrieved by the order of the Asstt. Collector, the appellants preferred an appeal before the Appellate Collector unsuccessfully and thereafter, they filed a Revision Petition under Section 131 of the Customs Act (Unamended) to the Central Government and the said revision application statutorily stood transferred to this Tribunal. Hence this appeal.
3. During the hearing of this appeal, Shri S.K. Ghosal, Dy. Manager of the appellants, contended that the authorities below were unjustified in imposing the penalty in that the consignee had not sought for the Agents survey within 3 days from the date of discharge of the goods as laid down in the Indian Carriage of Goods (By Sea) Act. Hence no liability is attached to the Steamer Agents with regard to the alleged shortage detected at the time of the Insurance Survey. In support of his contention, Shri Ghosal relied upon the decision of the Calcutta High Court in matter No. 1561 of 1981 in Everett (India) Pvt. Ltd. v.Asstt. Collector of Customs and Ors.
4. Shri A.K. Chatterjee, J.D.R. on the other hand supported the order of the Asstt. Collector and the Appellate Collector. He contended that the packages landed in unsound condition and, therefore, the Steamer Agents ought to have arranged for immediate survey but they have failed to do so. In the subsequent insurance survey, shortages were detected and, therefore, the findings of the Asstt. Collector and the Appellate Collector that the shortages took place on board the vessel prior to unloading of the cargo is correct and cannot be assailed.
5. The short question for consideration is whether the orders of the Asstt. Collector and Appellate Collector requires to be interfered with.
6. It is not disputed that the goods were discharged on 11-11-77 and the insurance survey took place on 27-12-1977 after a period of one and a half months. Till then the goods were lying in the part premises.
There is no positive evidence that there was no scope for pilferage during that long interval viz., the date of landing of the cargo and the date of the insurance survey. The Public Notice No. 132 issued by the Custom House require the Clearing Agents to have the goods landed under a qualified receipt i.e., in unsound condition, surveyed by the Steamer Agents immediately after their landing from the vessel in order to establish that the shortages took place before the landing of the goods. Admittedly such survey was not done.
7. The interpretation of the Appellate Collector that Public Notice No.132 did not supersede Public Notice No. 81 in the matter of arrangement of survey is not correct. Under the earlier Public Notice viz., P/N No 81 the duty was cast on the Steamer Agents to get the goods which landed under a qualified receipt surveyed. By Public Notice No. 132 dated 10-12-1983 instead of the Steamer Agents, the duty was cast on the Clearing Agents to get the goods landed under a qualified receipt surveyed by the Steamer Agents immediately after their landing from the vessel in order to establish that the shortage took place prior to landing. The learned Appellate Collector had not properly understood the modifications effected in Public Notice No. 132.
8. The contention of Shri Ghosal also finds support from the judgment of the Calcutta High Court referred to above. In the case before the Calcutta High Court, the ship in question had discharged the cargo by 1-9.1979 On or about 19-11-1979, the Asstt. Collector of Customs Manifest Clearance Dept issued a notice addressed to the petitioner alleging that on insurance survey held on 17-10-1979 some contents from two cartons out of 190 packages of toilet soap covered by a certain Bill of Entry was found short. It was further alleged that the said goods were landed in BK (broken) condition and that the shortages occurred prior to the unloading of the cargo from the ship The petitioner was called upon to show cause as to why penalty equal to the amount of duty leviable on the goods found short on survey should not be imposed on them under Section 116 of the Customs Act, 1962. On adjudication, the Asstt. Collector imposed a penalty upon the petitioner under Section 116 of the Customs Act, 1962. It was contended by the petitioners before the High Court that the insurance survey was held long after the discharge of the cargo and the provisions of the Public Notice No 132 had not been complied with. The Hon'ble Judge held that since the survey was held long after the discharge of the goods, and the goods had remained in the custody of the Port Trust which were the approved (by the Collector of Customs) authorities for keeping custody of the cargo in terms of Section 45 of the Customs Act, 1962, the penalty order on the steamer agents was illegal and, therefore, it set aside the penalty order. The decision of the Hon'ble Court, referred to above, is applicable in all fours to the facts of the present case. Shri A. K. Chatterjee was not able to place any other decision which has taken a contrary view. In the circumstances, the judgment of the Calcutta High Court, is binding on this Tribunal, Following the decision of the Calcutta High Court and for the reasons already stated, we allow this appeal and set aside the order of the Asstt. Collector confirmed by the Appellate Collector and direct that the appellants shall be given the consequential relief within two months from the date of communication of this order.