Bombay High Court
South East Asia Shipping Co. Ltd. vs Dy. Collector Of Customs on 17 July, 1986
Equivalent citations: 1988(19)ECR126(BOMBAY), 1993(64)ELT200(BOM)
JUDGMENT Pendse, J.
1. By this petition filed under Article 226 of the Constitution of India, the legality of the order dated September 26, 1981 passed by the Deputy Collector of Customs, Manifest Clearance Department, imposing penalty of Rs. 68,613.80 in exercise of the powers under Section 116 of the Customs Act is challenged. The facts giving rise to the filling of this petition are required to be briefly stated.
2. The petitioner filed Import General Manifest dated February 19, 1980 on arrival of vessel s.s. "ARACAJU". The goods imported for unloading by this vessel was general cargo. The Deputy Collector issued show cause notice dated April 1, 1981 to the petitioner to explain short-landing in respect of Item Nos. 158 and 31 set out in the Manifest. The petitioners gave explanation standing that in respect of Item No. 158, the entire consignment was discharged and there was no short-landing and in support, relied upon the tally sheet prepared by the Port Trust authorities. In respect of Item No. 31, the petitioners disputed shortage and claimed that as per BPT remark list, the item does not figure as short-landed. The petitioners also sought personal hearing.
3. The Deputy Collector by the impugned order observed that personal hearing was given on August 18, 1981 and the representative of the petitioners agreed that there was shortage in respect of Item No. 31 and accepted the proposed penalty. The Deputy Collector further observed that in respect of Item No. 158, the petitioners promised to furnish amended out-turn report of the Port Trust but failed to do so. The Deputy Collector thereupon proceeded to impose penalty and that order is under challenge.
4. Shri Venkiteswaran, learned counsel appearing on behalf of the petitioners, submits that the observation of the Deputy Collector that the representative of the petitioners accepted that there was short-landing in respect of Item No. 31 and the proposed penalty was acceptable to the petitioners is totally wrong. The learned counsel pointed out that in the petition, it was specifically denied that any such concession was given and in spite of that the respondents have not filed any return challenging the claim of the petitioners. As regards Item No. 158, Shri Venkiteswaran submits that the tally sheets establish beyond doubt that the entire cargo was unloaded and in face of these sheets, it was futile to rely upon the out-turn report of the Post Trust authorities. Both the submissions advanced by the learned counsel are correct and deserve acceptance. The order passed by the Deputy Collector cannot be sustained and is required to be set aside.
5. Accordingly, petition succeeds and the rule is made absolute in terms of prayer (a). In the circumstances of the case, there will be no order as to costs. Bank guarantee furnished by the petitioners to stand discharged.