- (1.) The petitioners have challenged the order dated 6.10.95 passed by the Joint Secretary of the Government of India dismissing the revisional application and upholding the order passed by the Collector of Customs(Appeals) Calcutta wherein it has been held there was short landing of cargo.
(2.) The short point is whether there was shortlanding of cargo which warranted imposition of penalty under Section 116 Of the Customs Act.
(3.) Mr. J. P. Khaitan, learned Advocate appearing on behalf of the petitioner submitted that the burden of proof regarding short landing lies with the customs authorities. If doubts persist penalty cannot be imposed. Submission was made that tally sheets showed that 28 packets landed but the consignee declared that he received 43 packets. Out turn report revealed that there was delivery of 43 packets. In the same out turn report, Calcutta Port Trust declared that there was excess of one carton, and one packet. The consignee was offered one carton and one packet but he refused to accept it after verification. According to the ship owner there was no shortage at all. If anything happened after unloading, it was not the responsibility of the ship owner. It was contended that there could not be any short landing when there were two excess landings. Submission was made that from a perusal of Paragraph 5 of the order it is clearthat doubts about shortlanding persisted with the respondent No. 3. Moreover, in Paragraph-5 (b) of the affidavit-in-opposition it has been admitted that there was excess landing of unmanifested cargo. Relying on the judgment of Union of India and Ors. v. Raja Agencies reported in 1993 (42) ECC 166 (Madras) submission was made that since doubts persisted with the customs authorities penalty should not have been imposed under Section 116 of the Customs Act, 1962. It was argued that the customs authorities should establish the fact of shortlanding before penalizing the petitioner. Relying on the judgment of the Calcutta High Court in Scindia Steam Navigation Co. Ltd. v. Collector of Customs reported in 1993(63) ELT 34 (Cal.) it was submitted Section 116 cannot be attracted that unless and until it is conclusively proved with evidence that there was short landing of goods.;