Tribunal Confirms CONCOR's Liability for Container Pilferage Under Section 45, Dismissing Security Responsibility Argument

The Tribunal upheld the order against CONCOR, confirming its liability for pilferage and tampering of a container seal under Section 45 of the Customs Act, 1962, and Regulation 6 of HCCAR, 2009. The Tribunal rejected CONCOR's argument that CISF was responsible for security, emphasizing that the statutory responsibility for safe custody lies with CONCOR as the approved custodian. The Tribunal validated the panchnamas documenting the examination of the container, dismissing objections regarding their validity. Consequently, the appeal by CONCOR was dismissed, affirming their accountability for the goods' security.

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Issues Involved:
1. Custody and Responsibility under Section 45 of Customs Act, 1962.
2. Liability under Regulation 6 of Handling of Cargo in Customs Area Regulations, 2009 (HCCAR, 2009).
3. Validity of Panchnama and Examination Proceedings.
4. Role and Responsibility of CISF vs. CONCOR.

Summary:

1. Custody and Responsibility under Section 45 of Customs Act, 1962:
The appellant, CONCOR, was the custodian of the goods under Section 45 of the Customs Act, 1962. The goods, valued at Rs.3,24,93,750/-, were seized due to misdeclaration and undervaluation and were handed over to CONCOR for safe custody. The Tribunal upheld that the custodian is responsible for the safe custody of the goods until they are cleared for home consumption or warehousing. The appellant's argument that the responsibility lay with CISF was rejected, as the statutory mandate under Section 45 places the duty of safe custody on the approved custodian, which was CONCOR.

2. Liability under Regulation 6 of Handling of Cargo in Customs Area Regulations, 2009 (HCCAR, 2009):
Regulation 6 mandates that the Customs Cargo Service provider (CONCOR) is responsible for the safety and security of the goods under its custody. The Tribunal found that CONCOR failed to fulfill its responsibilities as the goods were pilfered, and the container seal was tampered with while in their custody. The Tribunal cited the case of M/s. Continental Warehousing Corporation to emphasize that the custodian cannot permit the removal or tampering of goods without written permission from the proper officer.

3. Validity of Panchnama and Examination Proceedings:
The Tribunal addressed the appellant's objection to the validity of the panchnamas dated 2.11.2011 and 3.11.2011, which documented the examination of the container. It was observed that both panchnamas were consistent in content, despite minor differences in timing, and bore signatures of independent witnesses and the proprietor of the importing company. The Tribunal concluded that the panchnamas were valid and that the Customs seal No.594385 was affixed and handed over to CONCOR for safe custody.

4. Role and Responsibility of CISF vs. CONCOR:
The appellant's argument that CISF was responsible for the security of the container was dismissed. The Tribunal clarified that the statutory responsibility under Section 45 and Regulation 6 lies with the approved custodian, CONCOR, and not CISF. The Tribunal emphasized that CONCOR, as the custodian, was liable for the pilferage and tampering of the container seal.

Conclusion:
The Tribunal upheld the order under challenge, confirming the liability of CONCOR for the pilferage and tampering of the container seal under Section 45 of the Customs Act, 1962, and Regulation 6 of HCCAR, 2009. The appeal was dismissed.

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