1 wp-265.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 265 OF 2006 M/s.Sai Shipping Company (P) Ltd. ... Petitioner. V/s. 1. Union of India, 2. The Commissioner of Customs (Appeals), 3. The Asst.Commissioner of Customs/ ... Respondents. A.M.Vernekar for the petitioner. P.S.Jetly with R.B.Pardeshi for the respondents. CORAM : V.C.DAGA AND S.J.KATHAWALLA, JJ. DATED : 4th August 2010. JUDGMENT : (Per V.C.Daga, J.) Perused petition. Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This petition, filed under Article 226 of the Constitution of India, is directed against the order dated 30th November, 2005 passed by the Joint Secretary to the Government of India in exercise of revisional powers under 2 wp-265.06 section 129DD of the Customs Act, 1962 (“Act” for short) affirming the order in appeal dated 7th July, 2005 passed by the Commissioner of Customs (Appeals), Mumbai; wherein the order-in-original dated 28th April, 2005 passed by the Assistant Commissioner of Customs (MCD), Mumbai imposing penalty in the sum of Rs.2,51,640/- for short landing of the goods was confirmed. Facts : 3. The petitioner as the vessel agent of the vessel M.V.Sangwon, which was due to arrive at Mumbai Port filed Import General Licence (IGM) dated 31st December, 1998 with the Customs in respect of the goods carried on board. 4. The aforesaid vessel arrived at the port of Mumbai loaded with cargo, namely; Chinese Polished Beans (“pulses” for short) in bags and Pipes namely New and Unused Plain and Seamless Steel Casting (“pipes” for short) in bundles. The total quantity meant for discharge at Mumbai was 1,35,586 bags of pulses and 2,200 pieces of pipes under the IGM dated 31st December, 1998. 5. The goods were discharged from the vessel at the Mumbai Port in the presence of and under the supervision of Customs Officer and Mumbai Port Trust (BPT) authorities. The Tally Sheets issued by the Mumbai Port Trust showed that as against the manifested quantity of 1,35,586 bags of pulses, 1,38,848 bags were discharged and as against 2,200 3 wp-265.06 pieces of pipes, 2,266 pieces of pipes were discharged from the vessel. However, Out-Turn Report of BPT reported short landing of bags as well as pipes. 6. The Assistant Commissioner of Customs, the Adjudicating Authority (Manifest Clearance Department), respondent No.3 herein relying on the Out-Turn Report of the BPT issued show-cause-notice dated 9th March, 1999 to the petitioner under section 116 of the Act stating that as per the Out-Turn Report submitted by the Mumbai Port Trust authorities one piece of pipe under Item No.L-2 and 1,710 bags of pulses under Item No.L-21 had been short landed, as such why action should not be taken under the provisions of the Customs Act. 7. The petitioner filed their reply dated 24th March, 1999 and denied that there was any short landing of the manifested goods under IGM dated 31st December, 1998 and pointed out that as against the manifested quantity of 1,35,586 bags of pulses, 1,38,848 bags were discharged and as against 2,200 pieces of pipes, 2,266 pieces were discharged from the vessel which were in excess of the manifested quantity. The petitioner also drew attention of the adjudicating authority to the public notice No.50 dated 20th March, 1992 issued by the Customs authorities pursuant to the guidelines laid by this Court in the case of M/s.Shaw Wallace & Co.Ltd. v. The Assistant Collector of Customs, Oil Unit & ors., 1987 (3) BCR 151; wherein it was not open for the adjudicating authority to rely on the Out- 4 wp-265.06 Turn Report of BPT and that the Tally Sheet was the only document which could have been taken into account. 8. The respondent No.3 by letter dated 29th January, 2004 called upon the petitioner to appear for personal hearing on 11th February, 2004. Accordingly petitioner appeared before respondent No.3 and filed additional copy of its reply along with copies of Tally Sheets. The respondent No.3, during the course of hearing, noticed that there were discrepancies between the Tally Sheets and the Out-Turn Report given by the Mumbai Port Trust authorities. Consequently, hearing was adjourned with a view to seek clarification from the Mumbai Port Trust. 9. The petitioner was again called upon to appear for personal hearing on 6th October, 2004. Accordingly, the petitioner was heard. The respondent No.3 passed an order- in-original dated 28th April, 2005 and held that there was short landing of one piece of pipe i.e. New and Unused Plain and Seamless Steel Casting Pipe under Item No.L-2 and 1,710 bags of pulses i.e. Chinese Polished Beans under Item No.L-21. These findings were recorded on the basis of confirmation given by the Mumbai Port Trust authorities vide their letter dated 9th March, 2005, The respondent No. 3 imposed penalty of Rs.2,51,640/- on the petitioner. 10. The petitioner not satisfied with the aforesaid order-in-original, unsuccessfully, preferred appeal under section 128 of the Act before the Commissioner of Customs (Appeals) and suffered adverse order dated 7th July, 2005. 5 wp-265.06 11. Aggrieved by the aforesaid order-in-appeal, petitioner preferred revision application before the Joint Secretary, Ministry of Finance, respondent No.1 herein. The revisional authority was pleased to dismiss the revision application filed by the petitioner vide its order dated 30th November, 2005. 12. Being aggrieved by the aforesaid orders passed by the authorities below, the petitioner has filed present petition with a prayer to quash and set aside the orders being patently illegal and bad in law. Submissions : 13. Mr.Vernekar, learned counsel for the petitioner urged that the authorities below erroneously read the Tally Sheets prepared by the Mumbai Port Trust authorities at the time of discharge of the vessel and erroneously relied upon the Out-Turn Report and letter dated 9th March, 2005 submitted by the Mumbai Port Trust authorities to arrive at a decision that there was a short landing of one piece of Plain and seamless Steel Casting pipe and 1,710 bags of Chinese Polished beans- pulses from the vessel M.V.Sangwaon under IGM dated 31st December, 1998. 14. Mr.Vernekar further urged that the authorities below have also ignored public notice dated 20th March, 1992 issued by the Customs authorities which, in terms, mandated that manifest adjudicating authorities should decide only 6 wp-265.06 on the basis of the Tally Sheet furnished by the port authorities to find out whether any cargo was short landed and not on the basis of Out-Turn Report forwarded by the port authorities much after discharge of the vessel. He submits that the findings recorded by the authorities below that the goods were short landed is totally contrary to the guidelines framed in the judgment of this Court in the case of M/s.Shaw Wallace & Co.Ltd. (supra). 15. Per contra, Mr.Jetly, learned counsel appearing for the respondents tried to justify the findings recorded by the authorities below. He urged that all the authorities below have recorded concurrent findings of fact, as such this Court not being a court of appeal should not interfere with the impugned order. Consideration : 16. Having heard rival contentions, having examined the orders passed by the authorities below in the light of the guidelines framed by this Court in M/s.Shaw Wallace & Co.Ltd. (supra), we independently examined the Tally Sheets along with calculations produced on record and we have no hesitation in recording our finding that the bags of pulses, namely, Chinese Polished Beans discharged by the vessel were more than the number of bags mentioned in the IGM. There was no short landing so far as bags of pulses i.e. Chinese Polished Beans are concerned. Mr.Jetly could not dispute, on the basis of Tally Sheets, that the bags of 7 wp-265.06 pulses discharged by the vessel at Mumbai Port were in excess than that of mentioned in the IGM. The authorities below were not justified in relying upon the Out-Turn Report submitted by the Mumbai Port Trust authorities. He could not justify a one line order, without recording reasons, passed by the revisional authority holding that in the facts and circumstances of the case it could not find any infirmity with the order-in-appeal. In the circumstances, finding recorded by the authorities below including that of revisional authority holding that there was short landing of bags of Chinese Polished Beans is liable to be quashed and set aside. 17. So far as pipes are concerned, the petitioner could not satisfy on the basis of the material available on record that the vessel has discharged/unloaded pipes more than the pipes mentioned in the IGM. After having considered the material available on record, the finding recorded by the authorities below that one piece of Seamless Steel Pipe was short landed cannot be faulted. The said finding stands confirmed. 18. In the above view of the matter, the impugned order to the extent it imposes penalty for short landing of the bags of Chinese Polished Beans, is quashed and set aside. In this view of the matter, the quantum of penalty will have to be redetermined. Penalty can only be imposed to the extent of short landing of one piece of Seamless Steel Pipe, the quantum of which the adjudicating authority will have to re-determine. For this limited purpose, 8 wp-265.06 proceedings are remitted back to the adjudicating authority to re-determine the quantum of penalty vis-a-vis short landing of one piece of Seamless Steel Pipe. 19. In the result, rule is partly made absolute in terms of this order with no order as to costs. (S.J.KATHAWALLA, J.) (V.C.DAGA J.)