ORDER
G.A. Brahma Deva, Member (J)
1. This appeal arises and directed against the Order No. IGM No. 407/83 MCD dated 15/19-12-1988 passed by the Additional Collector of Customs, Customs House, Visakhapatnam.
2. The appellants M/s. Bhanojirow, Garuda Pattabhiramayya & Company being steamer Agents on behalf of their Principal M/s. Shipping Corporation of India, carried the goods in their vessel m.v. “Vishva Nayak”. The SAIL, Bhillai as consignee imported from USSR 38 packages of screws in this m.v. Vishva Nayak. The ship arrived at Visakhapatnam Port on 3-1-1984, and discharged cargo. In view of the discrepancy between the tally sheet and out-turn report and based on out-turn report of Visakhapatnam port authorities, the Additional Collector of Customs who adjudicated the matter has imposed penalty of Rs. 13,51,197 (Rupees thirteen lakhs fifty one thousand one hundred and ninety seven only) on the appellants being Steamer Agents under Section 116 of Customs Act, 1962 for not accounted the shortlanding of 14 unpacked screws and spare parts. The appellants are questioning the validity of the orders passed by the Additional Collector in imposing penally based on out-turn report in this appeal.
3. Shri A.K. Jain, learned Advocate, appearing for the appellants submitted that there was no shortlanding at all as entire cargo was discharged completely from the vessel in good order and sound condition which was confirmed by the Master of the Ship and tally sheets issued by the Port Trust Authorities authenticate the evidence of discharge of entire cargo. He strongly contended that tally sheets are an authenticated documents which proved the discharge of entire cargo and no shortage was found therein but the Adjudicating Authority proceeded to levy penalty based on out-turn report of Port authorities and that too after 2/2 years which is unjustified and unwarranted. In support of his contention he relied upon the following decisions :-
(i) Shaw Wallace & Co. Ltd. v. Assistant Collector of Customs & ORs. [1986 (25) E.L.T. 948 (Bombay)].
(ii) Mackinnon Mackenzie & Co. Ltd. v. Board of Trustees and Ors. [1987 (32), E.L.T. 617 (Bom.).
(iii) South East Asia Shipping Co. Ltd., Bombay v. M.C. Kaul Deputy Collector of Customs, and Union of India, [1988 (19) ECR-126 (Bombay)].
He stated that in view of the ruling in the above decisions when the tally sheets provide evidence of the landing of the entire cargo the out-turn report would become superfluous. Further he submitted that there was no claim even of the consignee for short-landing items as there was no shortage.
4. Shri V.K. Sharma, learned S.D.R. appearing for the respondent, justified the order and penalty for short-landing based on out-turn report.
5. We have gone through the arguments advanced by both the parties and perused the records. In this case, it is evident that port authorities have prepared tally sheets and entire goods have been landed but later on shortage was found as per outturn report and due to discrepancy between the tally sheets and out-turn report, the Additional Collector proceeded to levy penalty under Section 116 of the Customs Act based on out-turn report. While allowing Writ Petition by cancelling penalty under Section 116 of the Act based on out-turn report, Bombay High Court in the case of Shaw Wallace & Co. Ltd., cited (Supra) has set out some guidelines for the benefit of the Customs authorities and to the concerned persons so as to provide for smooth exercise of functions under the provisions of the Customs Act as well as to ensure that injustice is not caused to any of the authorities or to the person-in-charge of the conveyance. The relevant portion relating to this case is reproduced as under :-
“General Cargo.
(1) The Port Trust authorities shall maintain tally at the time of landings of the cargo with appropriate marks in respect of cargo without any remarks or numbers.
(2) xxxxxxxxxxx
xxxxxxxxxxxx
(3) The Customs authorities shall ascertain whether any cargo was short landed on the basis of the copy of the tally sheets furnished by the Port Trust authorities and not on the basis of any out-turn report forwarded by the Port Trust authorities long thereafter.
xxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxx”.
Again in the case of Mackinnon Mackenzie & Company Ltd., cited (supra). Bombay High Court has struck down Show Cause Notice since the sole basis of the show cause notice being out-turn report for short-landing where Port Trust Authorities have not prepared tally sheets. Further this aspect was strengthened by the ruling of Bombay High Court in the case of M/s. South East Asia Shipping Co. Ltd., Bombay, cited (supra) where it has been clearly observed that the tally sheets establish beyond doubt that the entire-cargo was unloaded and in face of these sheets, it was futile to rely upon the outturn report of the Port Trust authorities. Accordingly, High Court of Bombay has taken a consistant view that when there is a discrepancy between the tally sheet and out-turn report, out-turn report would become superfluous.
6. Following the guidelines and ratio of the decisions cited (Supra), we hold that tally sheet is an authenticated document which has to be relied upon in this case and Additional Collector was not justified in levying penalty based on out-turn report.
7. In the result, we set aside the impugned order and allow the appeal.