ORDER
P.K. Kapoor, Member (T)
1. This is an appeal by the Department against the order dated 13-10-1983 passed by the Collector of Customs (Appeals), Calcutta. Briefly stated the facts of the case are that the respondents imported a consignment of Pig Iron from Peoples Republic of China at Paradeep Port. The goods arrived by the vessel M.V. Lilac Star, lot No. 74/81. The Import General Manifest filed by the steamer agents M/s. South India Corporation on behalf of the Master of the vessel showed the weight of the consignment as 5334 MT. The importers filed Bill of Entry No. 16-Imp/81-82 dated 20-8-1981 for the manifested quantity of 5334 MT. The weight as declared in the Manifest, Bill of Lading and invoice was accepted and the goods were allowed to be cleared without actual weighment. After clearance of the goods it was noticed that according to the final Survey Report No. 58/81 dated 27-8-1981 prepared by the Surveyors M/s. Paradeep Marine Services, a quantity 5395.000 MT of Pig Iron was landed from the vessel M.V. Lilac and the endorsement by Deputy Traffic Manager (Operation), Paradeep Port Trust on the reverse of the duplicate Bill of Entry No. 16/Import/81-82 dated 20-8-1981 also showed that the quantity of Pig Iron actually delivered was 5395.000 MT. On 29-8-1981 a supplementary manifest was filed by the Steamer agents, M/s. South India Corporation (Agencies) Ltd. on the basis that the quantity of Pig Iron actually landed from the vessel was 5395.000 MT. Having regard to the endorsement made by the Deputy Manager (Operation) Paradeep Port Trust on the reverse of the duplicate Bill of Entry and the supplementary manifest filed by the Steamer agents, a demand for a sum of Rs. 41,305.55 on account of the difference of duty on the quantity declared in the invoice and Bill of Lading i.e. 5334 MT and the quantity of 5395 MT as recorded by the Port Trust on the reverse of the duplicate Bill of Entry was issued to the respondents. The demand was later confirmed by the Assistant Collector by his order dated 10-8-1982. Being aggrieved by the order passed by the Assistant Collector the respondents preferred an appeal before the Collector of Customs (Appeals), Calcutta who set aside the order passed by the Assistant Collector. In the impugned order the Collector (Appeals) held that the quantity as declared in the Bill of Lading and invoice had to be the basis for assessment of duty since the quantity of 5334 MT arrived at on the basis of Draft Survey had to be deemed as approximate.
2. On behalf of the Revenue the learned JDR Shri Satish Kumar stated that apart from the endorsement dated 27-8-1981 on the reverse of the Bill of Entry by the Deputy Traffic Manager, Paradeep Port Trust, the Department was also relying on the certificate dated 30-10-1981 issued by the Port Trust which was annexed to the Miscellaneous application No. C/Misc/949/91-A filed by the appellant. He pleaded that the application for taking on record the additional evidence may be allowed. He added that in the certificate dated 30-10-1981 filed by the Department along with the Misc. application the Port Trust had certified that on weighment on the Port Trust and the Government weighbridges during the period 21-8-1981 to 13-9-1981 the actual quantity of Pig Iron imported by the appellants by the vessel ‘Lilac Star – Rotation No. 74/81″ was found to be 5476.500 MT. On the ground that duty was recoverable on the quantity of goods certified by the Port Trust on the basis of the record of actual weighment Shri Satish Kumar pleaded that the impugned order may be set aside.
3. On behalf of the respondents the learned advocate Shri K.K. Lahiri appeared before us. He stated that the weight of the goods as shown in the relevant shipping documents such as Bill of Lading, Import General Manifest and invoice was 5334 MT. He added that according to the endorsement made on the reverse of the Bill of Entry on 21-8-1981 the goods were found to be as per Bill of Lading. He pointed out that the second endorsement was made on the reverse of the Bill of Entry after clearance of the goods on 27-8-1981. He stated that weight of the goods as declared in the shipping documents has to be taken as the correct weight since payment to the suppliers was made for that quantity. Shri Lahiri contended that the quantity of Pig Iron actually cleared by the appellants could not be taken as 5395 MT since the endorsement dated 27-8-1981 made by the Deputy Traffic Manager, Paradeep Port Trust clearly states that the quantity declared was determined on the basis of the Draft Survey Report. On the grounds that the Draft Survey method gives only the approximate weight of cargo loaded on a vessel the learned counsel reiterated his stand that the weight as declared by the suppliers on the shipping documents has to be taken as the correct weight of goods shipped and cleared since payment to the suppliers was made only for that quantity. He pleaded for the rejection of the appeal filed by the department.
4. In the Miscellaneous application filed by the Department a prayer has been made for taking on record as additional evidence the certificate dated 30-10-1981 issued by the Deputy Traffic Manager, Paradeep Port Trust on the ground that it certifies the quantity of Pig Iron which after discharge from the vessel M .V. “Lilac Star” Rotation No. 74/81 was actually delivered to the consignees M/s. TISCO Ltd. after weighment on Port Trust and Government weighbridges. We have considered the prayer made by the appellants. Since the certificate dated 30-10-1981 issued by the Deputy Traffic Manager, Paradeep Port Trust reflects the weight of the disputed goods as found on actual weighment on the Port Trust and Government weighbridges in our view it is likely to be of assistance in examination of the issues in this appeal. We, therefore allow the Misc. application and permit the said certificate to be taken on record.
5. Taking up the appeal filed by the Department, we find that the respondents’ case is that the quantity of Pig Iron as declared by the supplier in the shipping documents viz. Import General Manifest, Bill of Lading and invoice has to be deemed as the actual quantity imported and cleared since payment was made by the importers only for the invoiced quantity. They have also contended that the certificate dated 27-8-1981 recorded on the reverse of the duplicate Bill of Entry cannot be relied upon since the certified quantity of 5395 MT was based on Draft Survey, which can at best give an approximate figure in respect of any bulk cargo loaded on a vessel. As against this the department’s case is that the Deputy Traffic Manager, Paradeep Port Trust in his certificate dated 30-10-1981 had confirmed that on actual weighment prior to its clearance, the total weight of the imported Pig Iron was found to be 5476.500 MT.
6. In this regard we find that on 27-8-1981 the Deputy Traffic Manager, Paradeep Port Trust recorded the following endorsement on the reverse of the duplicate Bill of Entry:
“Delivered in full as per Draft Survey Report i.e. 5395 MT.
Sd/-…
Dy. Traffic Manager (Opn.)
Paradip Port Trust
Dated 27-8-1981″
Thereafter on 30-10-1981 he issued another certificate in which the actual quantity of Pig Iron which was allowed to be cleared after weighment on Port Trust and Government weighbridges was indicated. This certificate reads as follows :-
“This is to certify that a total quantity of 5,476.500 tonnes (Five thousand four hundred seventy six point Five zero Metric tonnes) of Pig Iron has been weighed at Port Trust weighbridge and Govt. weighbridge for the period from 21-8-1981 to 13-9-1981 per Ex. mv. ‘Lilac Star Rot. No. 74/81 account M/s. TISCO LTD.
Port Trust Weighbridge - 5,002.100 M. Tonnes
Govt. weighbridge - 474.400 M. Tonnes
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5,476.500 M. Tonnes
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Sd/- K.S.G. Krishnan
DY. TRAFFIC MANAGER (OPN.)
PARADEEP PORT TRUST"
7. It is seen that there was a significant difference between the weight of the imported Pig Iron determined on the basis of Draft Survey and the actual weight determined by weighment on weighbridges. Under these circumstances the finding in impugned order that the invoiced quantity of 5334 MT was also confirmed by the findings of the Port authorities on actual weighment of the goods on the Port weighbridge is contrary to the facts on record. According to the appellants the Steamer agents M/s. South India Corporation (Agencies) Ltd., Paradeep had also filed a supplementary manifest on 29-8-1981 showing the quantity of cargo actually landed as 5395.000 MT. Since the indirect method of Draft Survey for determination of the weight of bulk cargo loaded on a vessel, can introduce a margin of error, in our view duty was recoverable on the quantity of 5395 MT as determined on actual weighment on weighbridges prior to the clearance of the goods.
8. We, therefore, set aside the impugned order and allow the appeal.