K. Madhava Reddy, Acting C.J.
1. M/s. South India Corporation Agencies Ltd., represented by its General Manager calls in question the order No. 1/82/MCD/14/14M.70/81, dated 15-4-1982 made by the Assistant Collector of Customs, Visakhapatnam, imposing a penalty of Rs. 80,170/- under Section 116 of the Customs Act, 1962, for the shortlanding of the high speed diesel oil transhipped by the tanker m.t. 'Go Go Rover'. That tanker arrived at Visakhapatnam on 5-3-1981. It transhipped part of the cargo at Calcutta through another vessel M.T. 'Megh Doot'. The tanker was carrying a cargo of 25002.593 M.T. of high speed diesel oil. A quantity of 3579.436 M.T. of diesel oil was discharged at Calcutta and only 20970.585 M.T. of diesel oil was discharged at Visakhapatnam Port, this accounting for 24550.021 M.T. as against the total quantity of 25002.593 M.T. carried by it. There was thus a shortlanding of 452.572 M.T. of High Speed diesel oil. After giving notice and calling upon the petitioner to submit his explanation and finding it not satisfactory, the Assistant Collector of Customs, after allowing a deduction of 1% B/L quantity for ocean losses, held that there was short delivery of 452.570 M.T. and imposed, as stated above, a penalty of Rs. 80,170/-.
2. This order is challenged on several grounds, two of which were primarily urged for admission of this writ petition : (1) Merely because there was shortlanding of the cargo, it cannot be concluded that the petitioner is liable to pay penalty and (2) If for every shortlanding penalty is imposed, Section 116 of the Customs Act would be unconstitutional and ultra vires of the Union Parliament as it would violate fundamental rights guaranteed to a citizen and it would amount to levying customs duty or penalty on goods not actually imported into India.
3. The challenge to the vires of Section 116 is based on the ground that it authorises imposition of penalty on goods not imported into the country. Section 116 reads as follows :
'116. If any goods loaded in a conveyance for importation into India, or any goods transhipped under the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity unloaded is short of the quantity to be unloaded at that destination, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the Assistant Collector of Customs, the person-in-charge of the conveyance shall be liable -
(a) in the case of goods loaded in a conveyance for importation into India or goods transhipped under the provisions of this Act, to a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods, been imported;
(b) in the case of coastal goods, to a penalty not exceeding twice the amount of export duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been exported.'
4. It would be seen that what is imposed is not duty, but penalty and that penalty is imposed not on the mere ground that any quantity of cargo is shortlanded but only when the shortlanded quantity or deficiency is not accounted for to the satisfaction of the Assistant Collector of Customs by the person incharge of the conveyance. As contended by the learned counsel for the petitioner that there may be losses at sea or on account of mechanical trouble or for other justifiable reasons the cargo may have to be unloaded at a port other than the port of its destination. That may be a very good cause for not delivering the entire quantity of the cargo at the port of destination. It is precisely for that reason that the person in charge of the conveyance is given notice and an opportunity to offer his explanation. Only when the explanation is found to be not satisfactory, penalty envisaged by Section 116 is imposed, because goods not satisfactorily accounted for could as well have been unauthorisedly imported into the country. What is imposed under Section 116 is not duty but penalty for not accounting to the satisfaction of the Assistant Collector of Customs the quantity of the goods shortlanded. Whether the shortlanding is properly accounted for or not is a question of fact for which the statutory appeal provided by Section 128 of the Customs Act is the proper remedy and not this writ petition. It is only when Section 116 is read as giving unbridled power to the Assistant Collector of Customs or other authority to impose penalty, the question of Section 116 of the Customs being ultra vires of the power of the Union Parliament and the said legislation being violative of the fundamental rights guaranteed to citizens arises. The provision need not be read in such a manner as to vest power in any authority to act arbitrarily when in so many words it declared that only in case the goods are not accounted for to the satisfaction of the Assistant Collector of Customs penalty is to be imposed, so as to render it violative of the fundamental rights and then declare is as ultra vires. We do not think that under Section 116 any unbridled or uncontrolled power is vested in the Customs Authorities to impose penalty so as to declare it as ultra vires. Appeal is the proper remedy for redressal of the grievance of the petitioner. Merely because the question of vires of Section 116 is raised in this writ petition, on the facts and circumstances of the case, we are not persuaded to entertain this writ petition at this stage. If the deficiency is properly accounted for, the appellate authority is competent to grant appropriate relief.
5. It was next urged that under Section 129 the right of appeal is hedged with the condition that the appellant should deposit the entire amount of penalty levied and it causes undue hardship to the appellant and tantamounts to denying him the right of appeal. We are unable to agree with this contention. Section 129 which requires any person desirous of appealing against any decision to deposit the amount of penalty levied also makes provision for the appellate authority to consider the request of the appellant that such insistence on payment of penalty would cause undue hardship to him and the appellate authority is vested with the discretion to dispense with such deposit either unconditionally or subject to such conditions as it may deem fit. In view of this provision, it is for the petitioner to approach the appellate authority and request it to relieve him of the hardship, if any, for preferring the appeal and not for this Court to entertain this writ petition holding that it would necessarily cause hardship to the petitioner and that it amounts to denial of the right of appeal. We, therefore, find no reason to admit this writ petition at this stage.
6. However, as the period of limitation for an appeal has lapsed and the petitioner states that in the hope that this writ petition would be admitted, having regard to the fact that a similar writ petition was admitted in the Madras High Court, he has not filed the appeal within time, the appellate authority may entertain the appeal, if filed within a period of one month from today and consider the request of the petitioner to relieve him of the hardship in depositing the entire amount of penalty as a condition for entertaining the appeal.
7. Subject to the above, this writ petition is dismissed.