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Forbes Forbes Campbell and Co. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Judge
Reported in(1983)LC1198DTri(Mum.)bai
AppellantForbes Forbes Campbell and Co.
RespondentCollector of Customs
Excerpt:
.....the releyant time did not mention in the out-turn reports that the containers were landed with seals intact. thispiactice of certifying of the landing of the containers with seals intact and indicating the number on the seal of the container in the out-turn report has been adopted by the bombay port trust only recently and hence for the appeals in question there is no evidence to show that the containers were landed with seals intact.the learned representative of the appellant has drawn my attention to the respective bills of lading for the items of the i.g-m. concerned and pointed out that these would show that the goods were "shippers load and count". the bills of lading were also marked with cy/cy or cy/cfs and these would indicate that the appellants were responsible only to the.....
Judgment:
1. These are 9 appeals filed under Section 129-A of the Customs Act by the appellants against the Orders of the lower authorities under which penalties have been levied on the appellants under Section 116 of the Customs Act for not accounting for the manifested cargo imported by the ships under their agency. Though the facts of each case difer, the principle underlining the appeal is the same and hence the appeals were heard together and are being disposed of under this common order, in these cases shortages were reported against the manifested items by the Bombay Port Trust's out-turn reports of the respective vessels or they were discovered on survey held by the consignees. In either case the liability of the appellants under Section 116 was enforced and penalties levied and confirmed under the respective orders of the lower authorities. In the appeals the arguments put for ward by the appellants are that the cargoes imported in all the cases were containerised and the containers were packed by the consigners at their premises after sealing and they were discharged in the same condition by the appellants as the agents, for the vessels concerned in the Bombay Port Trust's custody. The Bombay Port Trust during the releyant time did not mention in the out-turn reports that the containers were landed with seals intact. Thispiactice of certifying of the landing of the containers with seals intact and indicating the number on the seal of the container in the out-turn report has been adopted by the Bombay Port Trust only recently and hence for the appeals in question there is no evidence to show that the containers were landed with seals intact.

The learned representative of the appellant has drawn my attention to the respective Bills of lading for the items of the I.G-M. concerned and pointed out that these would show that the goods were "shippers load and count". The Bills of lading were also marked with CY/CY or CY/CFS and these would indicate that the appellants were responsible only to the extent of accepting a sealed container at the risk of the consigner and that the containers were received from consigner's yard for despatch to the consignee's yard or container freight station.

Hence the appellants accounted for their liability of discharging the goods under Section 116 of the Customs Act and no penalty should be levied on them. The appellants have also relied on the decision of the Appellate Collector of Customs, Madras under her Order No.C/27-MCD/I/1980 dated 30.1C80 and submitted that the ratio of this decision may also be extended to their appeals under consideration.

They have also filed a copy of the minutes of the discussions of the Chairman Sub-committee for Containerization and Customs Matters rate with the Member Customs, Central Board of Excise & Customs and the Collector of Customs, Bombay as circulated by Bombay Steamer Agents Association under Reference No. B.S.A.A/59/82 dated 15.4.82 and argued that as per the assurance given by the Member and Collector the penalties are not leviable in the cases under appeal. Hence the appellant's request that their appeals be allowed.

2. Shri Krishan Kamar has opposed the submissions. He has argued that there is no evidence to show that the containers were accepted for loading at the port of consignment with seals intact. Similarly, there is no evidence to show that the container was discharged from the ship concerned with the seal intact. Even apart from this, the Steamer agents are responsible under Section 116 of the Customs Act not only for the number of packages manifested by them for discharge at an Indian Port but also for the quantity to be discharged at the Port.

Hence even if the appellants arguments were to be accepted that the containers were landed with seal intact, though there is no evidence to this effect, this fact would not absolve them from the liability to payment of duty on the shortages found in the contents of the containers. He has, further, argued that the appellants have not made any effort to collect any evidence by approaching the owners of the ship or their agents at the Port of loading or the consigners to show the exact quantity of the goods meant for importation in India. Thus, the appeals have no substance. As regards the order of the Appellate Collector of Customs, Madras dated 3 \ 10.80, Shri Krishna Kumar pointed out that it does not contain any reasoning as to why the contentions of the appellants M/s. Binny Ltd. Cochin were upheld by the Appellate Collector of Madras and the amount of penalty was ordered to be refunded. In absence of these data, the benefit of this order cannot be extended lo the present appeals. He has, accordingly, requested that these appeals be dismissed.

3. I have examined the submissions of the appellants and the respondent in each case. I am in general agreement with the n-foments put forward by Shri Krishan Kumar for the respondents. I find that the appellants have not produced any evidence to show that the goods out-returned short or on survey found short were not sent by the consignor abroad.

Similarly no evidence has been produced from the Steamer Agents at the Port of origami that the containers were shipped with seals intact. It is only an inference drawn by the appellants that in case the seals had been tampered with, the container should not have been accepted for loading onboard. The responsibility of the appellants as Steamer Agents is both for the number of packages as well as for the contents thereof.

In the cases under appeal either the number of packages or the contents have been found to be short. There is no satisfactory explanation for the shortages. I he Hefley of the Order of the Appellate Collector of Customs, Madras, dated 30.10.80 camwt be extended to the appeals under question as the order does not disclose the grounds why the appeal of M/s. Binny Ltd. Cochin was upheld. Similarly, the minutes of the meeting of the Chairman, Subcommittee fur Containerisaticn and Customs Matters, are also not helpful for the past cases. Accordingly, I find that the appellants have not been able to establish their claim that the goods were short shipped or that they have 'accounted satisfactorily for the shortages. In this view, I find that the orders of the lower authorities are correct. The same are confirmed and the appeals are dismissed.


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