Manoranjan Mallick, J. - (1.) This writ petition is directed against the order passed by the Deputy Collector Customs the Respondent No. 2 on 17th September 1985 imposing a penalty of a sum of Rs. 48,621/- for the alleged short-landing of 69.847 metric tons of the inedible bleachable fancy tallow in bulk. The writ petitioner Mackinon Mackenzie and Co. Ltd. is a Steamer Agent and as agent imported to the Calcutta port through the vessel Botany Trust a consignment of bleachable fancy tallow in bulk.
(2.) The writ petitioner states as follows: The bill of lading relating to the said shipment of tallow issued by or on behalf of the shipowner acknowledged arrangement of a quantity "said to be 3044.198 tons of inedible bleachable fancy tallow in bulk". It was further stated in the said bill of lading that the quantity measurement weight of the cargo was unknown to the vessel and the Master. The weight of tallow shipped under the said bill of lading was 3027.997 metric tonnes as will appear from the loading parts Time Sheet issued by the Master of the vessel and countersigned by the shipper. After completion of the loading the said vessel proceeded to port of Calcutta and reached the said port on or about 24th March, 1982 where she was berthed at 'C' Netaji Subhas Docks for discharging her cargo. The cargo was pumped out of the vessel's tanks and was carried by means of flexible holes supplied by the consignees and poured into the shore tank of Indian Molasses Co. Pvt. Ltd., the respondent No. 3 at Ramnagar. After the tallow having been discharged from the said vessel had been poured into the said shore tank, the measurement of the quantity received in the said shore tank was taken by the petitioner's surveyor and also by the surveyor appointed by the consignees. The result of such measurement taken by the petitioner's surveyor was 2967.314 metric tonnes whereas according to the measurement of the consignee's surveyors it was 2961.931 metric tonnes. It is to be noted that the said shore tank was partially filled with tallow from other sources before tallow from the said vessel was inducted therein. According to the petitioner the difference in the measurement of the liquid cargo taken on board a vessel and in a shore tank wherein the cargo was received after discharge is only too common and results from the practical impossibility of obtaining absolutely accurate measurements of dips, temperature readings and specific gravity of samples taken. The difficulty becomes greater in the case of commodities like tallow the specific gravity of which may very. A slight difference in dip readings or in the reading of temperature or in the measurement a specific gravity may result in substantial differences in the measurement of weight causing paper shortages, or paper excesses. There were in the instant case additional reasons for the difference in the weight in the said Cargo as measured on board the vessel and as measured inside the shore tank. The condition of the shore tank was such that it was not possible to determine the weight of the said Cargo after it was discharged therein within the reasonable precision. Firstly, the shore tank was partially filled with tallow from a different source before the said cargo was inducted resulting in admixture of tallow from two different sources. Secondly, in endorsements made by the Central Public Works Department in the said shore tank and appearing at the relevant time thereon indicated that its calibration chart lacked reliability. On or about 22nd September 1984 the petitioner received a show cause notice from the Assistant Collector of customs Manifest Clearance Department (Oil) Calcutta alleging that out of the manifested quantity of 3044.198 metric tonnes of the tallow the said vessel had discharged 2943.910 metric tonnes resulting in a shortage of 100.288 metric tonnes which was 69.40 metric tonnes in excess of the permissible shortage of 1%. By the said notice the petitioner was called upon to explain why penalty under Section 116 of the Customs Act, 1962 should not be imposed upon the petitioner for the alleged shortage. A true copy of the said show cause notice, is annexed as annexure 'E'. The petitioner by a letter dated 6th November 1984 replied to the said show cause notice and gave in details the explanation which resulted the apparent shortage but indicated that the alleged shortage did not correctly represent the quantity of tallow discharged from the vessel and that shortage recorded by the measurement was a paper shortage only. But the Deputy Collector of Customs the Respondent No. 2 arbitrarily rejected the petitioner's contention and imposed of penalty of Rs. 48,621 for the alleged shortlanding of 69.847 metric tonnes of the said Cargo. Being aggrieved by and dissatisfied with the said action the petitioner preferred an appeal before the Collector of Customs (Appeal) but by the order dated 1st May 1986 the Respondent No. 1 rejected the said appeal and affirmed the said order of the Respondent No. 2. It appears from the said appellate order that the Respondent No. 1 did not at all consider the petitioner's contention that the measurement of the cargo made on board the said vessel before the cargo was pumped out was a relevant evidence as to the quantity discharged from the ship and in the circumstances of the instant case was better evidence than the measurement taken after the cargo had been discharged into the shore tank of the Indian Molasses Co. Ltd. The respondent No.1 erroneously held that the shipper's weight inserted in the bill of lading was conclusive as- regards the weight of the cargo shipped. It would appear that the Respondent No. 1 not seriously apply his mind to any of the contentions of the petitioner and merely dittoed the decision of the Respondnet No. 2. The Respondent No. 1 failed to consider that section 116 of the Customs Act, 1962 is a penal measure and no penalty, could be imposed except on the basis of clear and convincing evidence. The said decision of the Respondent No 1 is cearly visited by misconceptions of law, disregard of relevant evidence and arbitrary findings of the facts. 2. Being aggrieved by the said order of the respondent No. 1 the petitioner moves this court in its writ jurisdiction challenging that the order of both the Respondent Nos. 1 and 2 are arbitrary, illegal and liable to be set aside. The Respondent Nos. 1,2 and 5 contest the writ petition by filing an affidavit-in-opposition through the Deputy Collector of Customs. Customs House Calcutta being the Respondent No. 2. It is contented that correct quantity shipped appeared from the Bill of Lading on the basis of which freight insurance and all other charges were paid and as such the total quantity shipped was 3044.198 metric tonnes and the contention of the petitioner that the weight of the tallow shipped was 3027.997 is not correct. The Respondents do not have any knowledge as to the purported survey report of M/s. Norman Stewart & Co. and make no admission with regard thereof. The Respondents contend that the measurement of the shipped cargo while inside the ship was not reliable for the reasons made in paragraph 9 of the said affidavit-in-opposition. It is contended that the tallow was correctly measured in the shore tank and shortlanding is of 69.847 metric tonnes being the excess of the permissible shortage of 1% per metric tonnes. The Deputy Collector of customs was justified in imposing a penalty under Section 116 of the Customs Act and the Collector in appeal also did not commit any illegality in affirming that order. It is also contended that the contention raised by the petitioner was considered both by the Deputy Collector of Customs as well as by the Collector of Customs in appeal and the said contentions not being acceptable by both the authorities the same was rejected and the penalty was imposed by the Deputy Collector of Customs and affirmed by the Collector of Customs in appeal and the present petition is therefore not maintainable.
(3.) I have carefully considered the contentions raised by Mr. Ajit Ray Mukher-jee the learned Advocate appearing for the petitioner and Mr. Debal Banerjee the learned Advocate for the contesting respondents. On behalf of the petitioner the decision of the Calcutta High Court reported in Eastern Law Reports Vol-I page 93 Scindia Navigation Company Ltd. v. Joint Secretary, Govt of India has been cited. It has been submitted that Sabyasachi Mukherji J., as his Lordship then was, in a similar proceeding under Section 116 of the Customs Act has observed that in considering as to whether the petitioner has sufficiently explained the shortlanding it is necessary to consider the whole evidence on record. It has also been observed that the outturn report and manifest are the relevant pieces of evidence and are to be taken in conjunction with other pieces of evidence, such as surveyors report the conduct of the parties, the chemical analysis report and also the fact that there are any other types of goods in the ship. As according to the learned Judge, the respondent authorities proceeded on erroneous view of law and if on such erroneous view of law, a fact finding body comes to a conclusion then the concerned authority commits an error of law. It is apparent on the face of the record and the writ court is therefore justified in interfering with such order. Mr; Ajit Roy Mukherjee urges that both the Deputy Collector of Customs and the Collector of Customs in appeal came to the finding of fact without considering all the relevant evidence. It is also contended that the three survey reports of the tallow discharged in the shore tank indicated that the measurement varied. It is submitted that the quantity measured in shore tank by the Norman Steward & Co. showed 2969.314 metric tons. The measurement by the consignee's surveyor showed the same to be 2961.931 metric tons and that measured by the customs showed it to be 2943.910 metric tons.;