JUDGMENT
J.P. Devadhar, J.
1. The petitioners have challenged the penalty levied upon them under Section 116 of the Customs Act, 1962 for the alleged short landing of the goods. In the orders impugned in the petition, it is stated that action is taken against the petitioners solely based on the outturn report of the B.P.T. In the affidavit in reply, it is admitted by the respondents that as per the tally sheet of the B.P.T. at the time of discharge of the containers from the vessel, the seals of the containers were intact. If the seals put on the containers were intact, then for any shortage of goods stuffed inside the containers by the foreign suppliers, the shipping agents cannot be made liable. Whether the penalty can be levied upon the shipping agents under Section 116 of the Customs Act, 1962, solely based on the outturn report of the B.P.T., has been considered by this Court in the case of Forbes Forbes Campbell and Co. Ltd. v. The Deputy Col-lector of Customs Manifest Clearance Department and Anr., reported in 2003 (162) E.L.T. 88 (Bom.) = 2002 (4) ALL MR 225 and it is held that penalty cannot be levied upon the shipping agents/master of the vessel under Section 116 of the Customs Act, 1962, solely based on the outturn report of the B.P.T. In this view of the matter, the penalty levied against the petitioners cannot be sustained. Accordingly, the impugned orders passed by the authorities below are quashed and set aside. The rule is made absolute in terms of prayer clause (a) with no order as to costs. The respondents shall refund the penalty amount of Rs. 81,060/- already paid by the petitioners within a period of ten weeks from today. It is made clear that if the said amount is not refunded within ten weeks from today, then the respondents shall be liable to pay interest @ 10% p.a. on the said amount of Rs. 81,060/- from 1-1-2004 till payment.
2. Certified copy expedited.