HEILGERS LIMITED Vs. DEPUTY COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) The petitioner, Heilgers Ltd., carries on business as steamer agents for the Port of Calcutta and at all material time acted as such agents for the Japanese vessel "NORFOIK MARU" owned by M/s. Mitsui O.S.K. Lines Ltd. of Japan which arrived at the Port of Calcutta on or about 2nd September, 1979. Among the cargo brought by the vessel for discharge at the Calcutta Port, there was a consignment of 9 cartons of "FYH" brand ball-bearings, shipped at the Port of Kobe in Japan by M/s. Nippon Pillow Block Sales Co. Ltd. According to a declaration made by the shippers and inserted in the bill of lading, copy of which is annexure A to the petition, the weight of the consignment was 417.6 kilograms with identifying marks as mentioned in the bill of lading.

(2.) Upon arrival at Calcutta the vessel commenced discharging her cargo on 3rd September, 1979, and completed the discharge on 13th September, 1979. Upon discharge the cargo was taken charge of by the Calcutta Port Trust till the same was removed by the consignees.

(3.) By a letter dated 31st December, 1979, M/s. Export Claims Recovery Syndicate submitted a claim for Rs. 6,859.61 for 407 pieces of bearings alleged to have been found short on purported survey of four cartons. The petitioner repudiated the said claim as no steamer survey was held immediately after discharge of the cargo and an application for steamer survey had been made a month after the landing of the cargo. It is stated in paragraph 4 of the petition that on or about 19th October, 1979, the insurer of the said cargo at the request: of the consignees caused a survey to be held on the cargo without any notice to the petitioner and without their knowledge. On or about 17th November, 1980, the Assistant Collector of Customs, Manifest Clearance Department, Calcutta, issued a notice to the petitioner alleging inter alia that on an insurance survey held at 4, Netaji Subhas Docks on 10th October, 1979, 9 cartons valued at Rs. 6,716.11 were found short, and inasmuch as the shortage was detected in the insurance survey it was obvious that the shortage had occurred 6n board the vessel prior to landing. A copy of the notice is annexed to the petition and marked with the letter D. The petitioner submitted a reply, copy of which is annexure E to the petition and in the reply the petitioner pointed out in paragraphs 2 and 3 that the petitioner was not a party to the insurance survey which was held without their knowledge long after the discharge of the cargo and as such this survey could not reflect the actual physical condition at the time of discharge, and the fair and proper way to determine any shortage was to hold a joint survey immediately after discharge from the vessel in accordance with the Customs Department Public Notice No. 132.