2018 (4) TMI 1050 - AT - Customs

Pilferage - Recovery of duty from custodian-appellant - Penalty u/s 117 of Customs Act, 1962 - confiscation - Held that - Custodianship is institutionalized in the Customs Act, 1962 to ensure that there is no loss of revenue between the landing of a consignment and its clearance for home consumption. Inherent in such custodianship is the presumption of conformity with the declaration unless asserted otherwise at the time of taking over of custodianship of the cargo. In the absence of such assertion, there is no reason to accept the claim of short shipment - the adjudicating authority has rightly fastened the liability for duty on the pilfered goods on the custodian, who is the appellant in the present proceedings. Confiscation - Held that - The goods that were available are not offending goods. There is no allegation that these have been imported contrary to any prohibition under the Customs Act, 1962 or any other law in force - there is no ground for confiscation of these goods. Penalty - Held that - Penalty has been imposed u/s 117 which is liable to be invoked for any contravention or abetting of any contravention or failure to comply with any provisions of the Act - There is no requirement under the Customs Act, 1962 for declaration of any pilferage nor there is any apparent act of omission or commission that warrants imposition of penalty under section 117 - penalty set aside. Appeal allowed in part.

Summary

Issues:
1. Liability of duty on allegedly pilfered goods
2. Rejection of request for re-export and cross-examination
3. Discrepancy between quantities in bill of lading and actual numbers
4. Custodian's responsibility in case of shortage in goods
5. Imposition of penalty under section 117 of Customs Act, 1962
6. Confiscation of goods and demand for recovery of duty

Analysis:

1. Liability of duty on allegedly pilfered goods:
The judgment addresses the liability of M/S Maersk India Pvt Ltd for duty on goods valued at &8377; 1,16,92,946 which were allegedly pilfered during their custodianship. The Commissioner of Customs held them responsible for the duty amount and imposed penalties under the Customs Act, 1962. The tribunal upheld the duty liability due to the substantial difference between the quantities declared in the bill of lading and the actual numbers found during physical verification.

2. Rejection of request for re-export and cross-examination:
The appellant contested the shortage allegations, claiming that the revised quantity was not authenticated, and the documents for verification were not available. They argued that the allegation of pilferage was based on presumption and requested cross-examination, which was denied. However, the tribunal found the rejection of the request for cross-examination did not cause any avoidable detriment to the appellant.

3. Discrepancy between quantities in bill of lading and actual numbers:
The discrepancy between the quantities in the bill of lading and the actual numbers found during verification was a crucial point of contention. The tribunal noted that the sequence of accepting containerized cargo on board is based on the declared weight for stability during the voyage. The custodian's possession of the container and the keys undermined the appellant's claim of 'short-shipment.'

4. Custodian's responsibility in case of shortage in goods:
The judgment emphasized the custodian's responsibility in ensuring the safe delivery of goods. The custodian's failure to verify the goods upon taking possession of the container was deemed a breach of responsibility. The tribunal highlighted that custodianship is institutionalized in the Customs Act, 1962 to prevent revenue loss, and the liability for duty on pilfered goods falls on the custodian.

5. Imposition of penalty under section 117 of Customs Act, 1962:
The penalty imposed under section 117 was a subject of debate. The tribunal clarified that there was no requirement for a declaration of pilferage under the Customs Act, 1962. The appellant's negligence as a custodian did not warrant invoking section 117 for penalty imposition. The liability for duty on pilfered goods was attributed to the custodian's responsibility.

6. Confiscation of goods and demand for recovery of duty:
While the tribunal upheld the duty recovery from the appellant, it set aside the confiscation of goods and the imposition of penalties. It emphasized that the available goods were not offending goods and had not contravened any importation laws. The judgment concluded that there was no justification for confiscation or penalty imposition, thus disposing of the appeal accordingly.