1. Appeal under Section 129A of the Customs Act, 1962 praying that in the circumstances stated therein, the Tribunal will be pleased to set aside the order No. C49/162/78, dated 2.4.1981 of the Appellate Collector of Customs, Madras with consequential relief.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri S.B. Narayanaswamy, employee of the appellants and upon hearing the arguments of Shri A. Vijayaraghavan, Departmental Representative for the respondent, the Tribunal makes the following order : 3. Aggrieved by the aforesaid order of the Appellate Collector, the appellants preferred a revision application before the Government of India which stands transferred to the Tribunal in terms of Section 131B of the Act to be heard as an appeal.
4. By his order I.M. 808/69 MCD dated 15.4.1978 the Deputy Collector of Customs, Madras imposed a penalty of Rs. 17,900/- in respect of .58.425 M.T. superior kerosene short landed from out of a consignment of that commodity ex.s.s. NIKOLAY PODVOISKY which arrived in November 1969.
This was based on the quantity discharged into the tanks of the oil company at the ports of discharge, namely, Bombay, Cochin, and Madras.
The Appellate Collector of Customs, Madras rejected an appeal to her refusing to accept the ullage certificate produced by the appellants in proof of the quantity landed at the ports.
5. In the present appeal it is urged that the Bill of Landing contains an endorsement weight, quantity and quality now known to the carrier; no representative of the vessel took part in the port measurement at the loading or discharging points; hence any shortage on the basis of receipt in the tanks compared to the Bill of Lading quantity cannot be laid at the door of the carrier.
6., Under Section 30 of the Act the Master of the vessel or his agent is to file a manifest containing details of the cargo brought by him.
Having described the quantity brought in the vessel in terms of Section 30 of the Act it is not open to the carrier to claim that because of a clause in the Bill of Lading, he is not liable to account for the carrier claim to have been brought by him in the vessel. The ullage reports show the quantities found on board the vessel at the time of arrival and not the quantity actually discharged. The only information available in respect of discharged quantity is the one obtained by tank measurement; though the tanks are situated at a distance from the wharf and connected by a long pipe, in the absence of any allegation that there was an actual pilferage or leakage in the pipeline that is the next best information available regarding the quantity of oil actually discharged. In this view of the matter we find that the order of the Deputy Collector, as upheld by the Appellate Collector, is maintainable on facts and in law. Accordingly the appeal is dismissed.