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 5395.00 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 agent, 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 lo 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 suited 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 5476.500MT. On the grounds 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