AI Drafter 
TaxTMI 
TaxTMI 
2020 (4) TMI 422
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....(8) of Handling of Cargo in Customs Areas Regulation, 2009 for their failure to comply with the provisions of Regulations stipulated supra. (iii) The bond is liable to be enforced for breach/failure in performance of conditions contained in the aforesaid bond and the entire sale proceeds of Rs. 60 lacs are liable to be recovered from OWPL, however the amount of Rs. 25 lacs to be deposited by OWPL in the escrow account as per the directions of Hon'ble Punjab and Haryana High Court vide order dated 10.01.2020 in CWP No 282/2020 may be adjusted in this regard. The jurisdictional Assistant Commissioner is advised to act accordingly while enforcing the bond." 2.1 Appellant herein were appointed as Custodian under Section 45 of the Customs Act, 1962 for operating a "Custom Cargo Service Provider" under the handling of Cargo in Customs Area Regulations, 2009 (HCCAR). 2.2 A case was booked against M/s Golden Enterprises, New Delhi challenging the classification of the goods imported and the quantum of duty payable on the said goods. During the pendency of the investigation, adjudication and appeal proceedings, the goods imported by the importer vide Bill of Entry No 9072511 ....
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.... 27.6.2019 was issued to appellant. 2.9 The show cause notice issued to the appellant was adjudicated by the Commissioner vide the impugned order referred to in para 1, supra. 2.10 Aggrieved by the order of Commissioner Appellant have preferred this appeal. In the appeal they have also prayed application seeking the stay on the operation of order of Commissioner and an application for early hearing of the matter (Custom EH Application No 60087 of 2020. 2.11 Early hearing application filed by the Appellants was allowed by the order dated 18.02.2020, and matter was listed for hearing on 02.03.2020. 2.12 Importer sought to file an intervention application in the matter and he was lowed to filed the intervention application application as per Rule 1 Order 10 of the Civil Procedure Code, 1908 read with Rule 41 of CESTAT Procedure Rules, 1982. The said Application has been numbered as Misc Application No 60118 of 2020. 2.12 On 02.03.2020, with the consent of both the sides it was decided that it would be more appropriate to take up the appela itself for disposal rather than considering the stay application separately. Thus both miscellaneous application and appeal were lis....
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.... Commissioner has been passed with personal bias and without even appreciating the evidences available on record and the submissions made by them during the course of enquiry and adjudication; • The findings recorded by the Commissioner in the order are contrary to the stand taken by the department in the same matter before the High Court. Department has itself contested challenging the bonafides of the importer before the High Court; • The goods have been allowed provisional release by the Customs in 2013 itself, and the importer had chosen not to take provisional release of the goods. This has resulted in blocking of the space in the ware-house for entire period of litigation and they had demanded the rent and other charges in respect of the storing the said goods. Since after repeated request importer had failed to take the delivery of goods after making payment of the rent and other charges demanded by them, they have auctioned the goods of importer. • As per the direction contained in the order of High Court in its order dated in 10.01.2020 in CWP No 282 of 2020 (O&M), they had deposited an amount of Rs. 25 lakhs which two has been approp....
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....¢ Section 48 of Customs Act, 1962 of Customs Act, 1962 as per which the custodian was required to obtain the permission of proper officer before putting the goods to auction, too has been violated. Not only did Custodian sought any permission for auctioning the goods, they never informed the Custom Authorities about the auction or their intent to auction. • The actions of the Custodian, in auctioning the goods are in contravention of the regulation 5 and 6 of the HCCAR for which the action taken against them in terms of Regulation 11 and 12 of HCCAR is justified. 4.1 We have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 Undisputedly appellants is working as Custodian as per Section 45 of the Customs Act, 1962 for operating as a "Custom Cargo Service Provider" under HCCAR and is bound to function as per the provision of the Customs Act, 1962 and the HCCAR. In case of any contravention of the provisions of Custom Act, 1962 or the HCCAR, action has to betaken against him in terms of the said regulations. 4.6. Relevant provision of ten Customs Act, 1962 and HCCAR are reproduced below: ....
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.... any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof : Provided that -..... Explanation. - ......." Handling of Cargo In Customs Area Regulation, 2009 2(b) "Customs Cargo Services provider" means any person responsible for receipt, storage, delivery, dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in section 45 of the Act and persons as referred to in sub-section (2) of section 141 of the said Act; 6. Responsibilities of Customs Cargo Service provider: (1) The Customs Cargo Service provider shall - ........ (l) subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be; (m) ......... (q) abide by all the provisions of the Act and the rules, regulations, notifications and orders issued thereunder. (2) ........
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....ining the correct position. (4) The Customs Cargo Service provider shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings and where the Assistant Commissioner of Customs or Deputy Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the aforesaid inquiry, the Assistant Commissioner of Customs or Deputy Commissioner of Customs shall prepare a report of the inquiry recording his findings. (6) The Commissioner of Customs shall furnish to the Customs Cargo Service provider a copy of the report of the Assistant Commissioner or Deputy Commissioner of Customs and shall require the Customs Cargo Service provider to submit within the specified period not being less than thirty days any representation that he may wish to make against the findings of the Assistant Commissioner of Customs or Deputy Commissioner of Customs. (7) The Commissioner shall, after considering the report of the inquiry, and the representation thereon, if any, made by the Customs Ca....
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.... "High Court Order dated 10.01.2020 in CWP 282 of 2020 In the circumstances, it is directed that the petitioner would put an amount of Rs. 25,00,000/- in an escrow account and on its part, the competent authority would determine the question of admissibility of interest and its rate, if any, after adjudicating the dispute with regard to recovery of duty from the petitioner after giving opportunity of hearing to the petitioner. A final reasoned order be passed in this regard in accordance with law. Once the escrow account is created, the bank account of the petitioner would be de-freezed." 4.5 In our view the issue in relation to misconduct of the appellant has been adjudged and he has been found responsible for acting beyond the scope of the authority conferred on him in terms of approval granted under Section 45 and HCCAR. However the issue that needs to be considered is whether this act is enough to hold the appellant as habitual offender as has been held by the adjudicating authority for revocation of the permission granted under Section 45 to operate as custodian. Appellant counsel submitted during the course of argument of appeal that appellant is AEO (Authorize....