TaxTMI 
TaxTMI 
2024 (8) TMI 858
X X X X Extracts X X X X
X X X X Extracts X X X X
....udit of the appellant was conducted in the month of December 2020 and a report was furnished by the Audit and Inspection Cell of the Customs Commissionerate, Bangalore. 3. As per the Audit report, certain deficiencies were found in the functioning of the ICD, which are as below:- a) The notified area of ICD is not secured by separate boundaries, and the area should be sterile and inaccessible from other areas of the operations of the appellant. b) The security personnel were not monitoring entry and exit of the persons into the notified area and they need to be trained to control the movement of cargo as well as personnel with authorized documents only. c) They have taken a comprehensive insurance through their corporate office at New Delhi and terms of such insurance were not known to the appellant and have not furnished full copy of the insurance policy. d) There was no proper layout or plan of notified area of ICD, hence the notified area could not be identified separately and there is a need to undertake proper survey of the notified area. e) Several letters were addressed to the custodian by the Joint Commissioner for non-provisi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld them liable to penalty of Rs, 50,000/- under Regulation 12(8) of HCCAR, 2009 and Rs. 4,00,000/- under Section 117 of the Customs Act, 1962; a penalty extending up to Rs. 50,000/- is imposable under Regulation 12(8) of HCCAR, if the Customs Cargo Service Provider (CCSP) contravenes any provisions of the HCCAR or abets such contravention or who fails to comply with any provisions of the Regulation; the findings of the Commissioner with regard to breaches, if any, were venial in nature and cannot be equated to contravention of the statutory provisions so as to warrant imposition of penalty under Rule 12(8) of HCCAR; the imposition of penalty under Section 117 of the Customs Act is devoid of any cogent finding to justify the penalty; a penalty not exceeding Rs. 4,00,000/- under Section 117 of the Act is imposable on the person, who contravenes any provisions of the Customs Act or abets any such contravention or who fails to comply with any provisions of the Customs Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to penalty not exceeding four lakhs rupees; the Commissioner held that they faile....
X X X X Extracts X X X X
X X X X Extracts X X X X
....toms Act, 1962, which reads as under : SECTION 45. Restrictions on custody and removal of imported goods. - (1) Save as otherwise provided in any law for the time being in force, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the [Principal Commissioner of Customs or Commissioner of Customs] until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force, - (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer [or in such manner as may be prescribed]. [(3) Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilfered after unloading thereof in a customs area while in the custody of a person refer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the conditions mentioned in Regulation 5 and the discrepancies were found at the time of renewal could be because of certain new requirements, which should have arisen between the period of issue of custodianship and the application for renewal. The appellant has submitted that they could not attend to the issues raised by the Customs due to shortage of labour during the Covid-19 Pandemic. They have also mentioned in their submissions that they could attend to some of the issues and rest of the issues remaining would be attended to in due course and that there is no willful act on their part not to attend to the issues raised by the Customs. They have also submitted that the issues raised for which they have been penalized under Regulation 12(8) of HCCAR 2009 are of venial nature and do not merit imposition of penalty. Further, they have contended that imposition of penalty under Section 117 of the Customs Act, 1962 is not sustainable, since they have not violated any of the provisions of the Customs Act, 1962. 11. In this regard, I find that the custodian has operated from the area, which is not notified under Section 8, of the Customs Act, 1962. As regards Section 45, the a....