TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 332
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.... BOE' or 'bill of entry'). 3. Vide its letter dated 21.07.2016, the importer made a request to Customs for converting the subject BoE into a Bill of Entry for Home Consumption in order to store the subject goods in a bonded warehouse under Section 49. This request was allowed on 22.07.2016. 4. Importer addressed a letter to the appellant along with requisition form, intimating that it has been granted the permission to store/warehouse goods under Section 49 of the Customs Act, for a period of 30 days-during which the importer intended to re-export the subject goods. The importer further stated that if it fails to re-export the subject goods within a month, then it would transfer the goods to a private bonded warehouse. 5. Subject goods were presented to Asian Cargo (in 10 pallets) and were warehoused (without inspection or opening the pallets) by mentioning details as declared in the subject BoE. 6. The importer again requested that the Bill of Entry for home consumption may be converted to bill of entry for warehousing. Request was allowed on 02.08.2016, by Customs. 7. Importer intimated Customs that it had found a buyer, and requested that the goods may be allowed for third-....
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.... goods were subjected to 100% check as well as valuation by the Customs Department, the writ petition seeking release of the goods, which are no longer in existence, cannot be granted. If the petitioner /importer wishes it can agitate its grievance and seek appropriate remedy in accordance with law. 14. During pendency of the writ petition, show cause notice dated 24.05.2018 was issued to the appellant by the Commissioner of Customs, alleging that the subject goods have been pilfered while in the custody of the appellant. Further, the appellant have failed to discharge its responsibility under 'Handling of Cargo in Customs Area Regulations, 2009'. Accordingly, show cause notice proposed to demand duty of Rs.15,84,802/- along with interest under the provisions of Section 45(3) of the Act read with Regulation 6 (1)(j) of Handling of Cargo in Customs Area Regulation, 2009 (HCCAR). The show cause notice further proposed cancellation of the appellant's licence, which was granted to them under Regulation 10 of HCCAR, 2009 and why the same should not be placed under suspension. Further, penalty was proposed under Section 117 of the Act, alleging violation of Section 45 and 141 of the Cus....
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....re the goods of importer were warehoused, was done by M/s. Asian Cargo Movers. 20. Thus, any shortcomings is actually attributable to Asian Cargo Movers, who are the sub-contractor of CONCOR. They have pleaded that the matter is still pending investigation by Delhi Police and accordingly, the proceedings may be kept in abeyance. 21. Ld. Commissioner passed the impugned order confirming the proposed demand of duty of Rs.15,84,802/- along with interest under Section 45(3) of the Act read with Regulation 6(1)(j) of HCCAR. Further, penalty of Rs.50,000/- was imposed under Section 117 of the Act. Ld. Commissioner observed that the appellant was responsible for safety of the imported goods under its custody and thus, is liable to pay duty on the goods pilfered after entry thereof in the customs area. It is the appellant, who is responsible for shortcomings, if any, of their sub-contractor - Asian Cargo Movers. Ld. Commissioner further observed that pending investigation on the basis of FIR for the missing goods has no relevance as regards the action under the show cause notice under the Customs Act. Ld. Commissioner held that CONCOR is responsible having failed to meet its obligations ....
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...., which were stored in two particular pallets, had to be separated from the other pallets due to a termite attack. 26. It was only for the first time in July, 2017, when on filing of FIR, Delhi Police came to inspect the goods stored at Warehouse no.2, ICD, TKD, that the pallets were opened and packaging material of brand name 'Muscle Pharma' was discovered. Prior to this, Appellant/Asian Cargo Movers had neither opened nor examined the packages and the same were taken into the warehouse, as per the declarations made by the importer. 27. Ld. Counsel further submits that the appellant, as a Custodian of the goods under Section 45 of the Act, does not have the right to open the cartons/boxes/pallets/goods, in any manner, or inspect whether the goods purported to be imported, have actually been imported or anything else has been imported by mistake or otherwise. As per Regulation 2 of the Imported Packages (Opening) Regulation, 1963, 'no person shall, except with the permission of the proper officer, open any packages of goods imported into India and lying in a Customs Area'. Admittedly, no such instructions for opening the packages were given to the appellants. Thus, the appellant ....
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....the Customs officers, the appellant had identified the packages/pallets but the importer disputed the same. Accordingly, FIR was filed by the appellant and when the sealed packages /pallets were opened by Delhi Police, it was found to contain packing materials only. However, the importer, instead of checking the contents of import of such goods, has mischievously tried to shift the responsibility on the appellant by alleging that the subject goods have been lost while in the custody of the appellant. Thus, no case of pilferage of the imported goods is made out against the appellant-custodian. The appellant had offered the goods for delivery to the importer in the same position/sealed as had been presented to him for warehousing. Thus, the appellant cannot be saddled with any duty liability for alleged pilferage under Section 45(3). Reliance is placed on the ruling of this Tribunal in the case of CC Vs. Board Trustees of the Port of Mumbai -2005 (182) ELT 260 (T), wherein it has been held that before duty liability is shifted on the 'custodian of the goods', pilferage has to be established and such charges cannot be confirmed on the basis of assumption. 30. Reliance is also placed ....
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....ication order dated 8.6.2017 passed by the Joint Commissioner granting permission to re-export the goods, wherein it was observed that - AQCS has issued rejection certificate for the subject consignment. Such observation is bad as it does not specify the reason for issue of rejection of certificate. Further, such observation is also erroneous in absence of any record of samples having been drawn for testing. 34. It is further urged that pilferage is a serious charge, which can only be proved with the help of sufficient and cogent evidence. In the facts of the present case, where the appellant as Custodian has accepted the sealed packages without inspection and offered such sealed packages for delivery cannot be blamed for shortages/deficiencies. Accordingly, ld. Counsel prays for allowing of the appeal and setting aside of the impugned order. 35. Ld. Authorised Representative for Revenue relies on the impugned order. 36. Having considered the rival contentions, I find that admittedly, the imported packages have never been opened either by the Customs Authorities for inspection nor any sample was drawn. Simply based on the declaration of the importer the goods had been allowed to....