Shyamal Kumar Sen, J. - (1.) Pursuant to the order passed by this Court the Tribunal has referred the following questions to this Court for determination: "1. Whether on the facts and in the circumstances of the case and on the basis of the evidence on record the findings of the Tribunal that the sweeping emanating have no relation to the relevant consignment is perverse and arrived at without considering all material evidence. Whether on the facts and on the circumstances of the case and in view of the penal provisions of the Customs Act, the Tribunal should have held that the onus of proof was on the Customs authorities and that the appellant was entitled to the benefit of any doubt."
(2.) The facts, inter alia, are that the Port Trust of Calcutta reported shortlanding of 821 Bags Ammonia Nitrate Phosphate in respect of Line No. 1 (Breman) Ex. S/S Jalagirija under Rot No. 698/73. The concerned Steamer Agents, M/s. The Scindia Steam Navigation Co. Ltd. Cal. 16 were accordingly called upon to account for and explain as to why penal action under Section 116 Customs Act, '62 should not be taken against them for the cargo landed short. The Steamer Agent in their explanation stated that according to Port Trust O.T.R. of 13-11-1973, 630 Bags Am monium Nitrate Phosphate were landed from the vessel as sweepings and those were cleared by M/s. The Food Corpn. of India Ltd. In support of their contention they also submitted a photostat copy of the consignees letter dated 23-8-1976.
(3.) Considering the Steamer Agents' explanation the Dy. Collector of Customs observed as follows : "that even after several correspondences and enjoying all reasonable time and opportunity the Steamer Agents have failed to explain the shortlanded cargo to the extent of 821 bags satisfactorily. I also observe from the records that the consignee was granted refund against the shortlanding. The shortlanding is, therefore, established and Steamer Agents are liable to penal action under Section 116 of Customs Act, '62.";