2002 (7) TMI 318 - AT - Customs

Summary

Issues:
1. Challenge to vires of Section 45(3) of the Customs Act, 1962.
2. Liability of custodian for missing imported parcels.
3. Interpretation of Sections 13, 23, and 45(3) of the Customs Act.
4. Compliance with Circular No. 58/96-Cus regarding duty demands on custodians.
5. Consideration of Writ Petition No. 9280/97 and pending decision by the High Court.

Challenge to Vires of Section 45(3) of the Customs Act, 1962:
The appellant, a Government Company appointed as a custodian under Section 45 of the Customs Act, challenged the vires of Section 45(3) through a Writ Petition in the High Court of Karnataka. The Assistant Commissioner issued a show cause notice demanding customs duty and penalty for a missing imported parcel. The adjudication order confirmed the duty demand but did not impose a penalty. The Commissioner (Appeals) upheld the order and allowed the appeal to be decided on merit despite the pending Writ Petition.

Liability of Custodian for Missing Imported Parcels:
The appellant filed a complaint with the Airport Police Station regarding the missing package from the imported consignment. The Tribunal noted that the Customs Act imposes duty on goods lost by pilferage, which is the responsibility of the custodian. However, in this case, there was no evidence or inquiry regarding the alleged pilferage. The Tribunal emphasized the need for proper investigations before determining duty demands on custodians. The order was set aside, and the matter was remanded for a fresh decision after proper inquiries and awaiting the High Court's decision.

Interpretation of Sections 13, 23, and 45(3) of the Customs Act:
The Tribunal highlighted the distinction between goods lost by pilferage and the duty implications under Sections 13, 23, and 45(3) of the Customs Act. It emphasized that duty on pilfered goods is not required to be paid by the importer but is the responsibility of the custodian. The Tribunal referred to relevant case law and Circular No. 58/96-Cus, emphasizing the procedural requirements for duty demands on custodians and the need for compliance with such instructions.

Compliance with Circular No. 58/96-Cus Regarding Duty Demands on Custodians:
The Tribunal noted that Circular No. 58/96-Cus provided guidelines on issuing demand notices to custodians before granting duty remission to importers under Section 13. It emphasized the importance of following prescribed procedures before determining duty demands on custodians. The Tribunal found a lack of compliance with these procedures in the lower authorities' orders, leading to the setting aside of the decision and remanding the matter for proper redetermination.

Consideration of Writ Petition No. 9280/97 and Pending Decision by the High Court:
The appellants had filed a Writ Petition and requested to keep the matter pending until the High Court's decision. The Tribunal set aside the previous order and remanded the matter back for a fresh decision after proper inquiries and awaiting the High Court's decision on the pending Writ Petition. This ensured that the matter would be reconsidered in light of the legal proceedings before the High Court.