2003 (12) TMI 190 - AT - Customs

Demand - Warehoused goods in bond - Strictures against department - Duty payment - Customs House Agent

Summary

Issues Involved:
1. Duty demand and penalties imposed under Sections 28 and 114A of the Customs Act, 1962.
2. Misuse of warehousing facilities and misappropriation of Customs duty by the Clearing Agent.
3. Validity of duty payment via demand drafts.
4. Liability of the principal for the acts of the agent under Section 147 of the Customs Act, 1962.
5. Collusion or negligence by Customs Preventive Officers.

Detailed Analysis:

1. Duty Demand and Penalties:
The Commissioner of Customs confirmed a duty demand of Rs. 5,36,20,526/- and imposed penalties of Rs. 5,31,42,396/- on the appellants and Rs. 15,00,000/- on the General Manager under Sections 28 and 114A of the Customs Act, 1962. The appellants contested this, providing evidence that duty payments were made via demand drafts favoring the Commissioner of Customs.

2. Misuse of Warehousing Facilities and Misappropriation of Customs Duty:
Investigations revealed that the clearing agent, M/s. Far Port International, engaged in fraudulent activities, substituting goods in the bonded warehouse and misusing demand drafts meant for the appellants to pay duties for other importers. The appellants lodged a police complaint and provided detailed evidence of duty payments.

3. Validity of Duty Payment via Demand Drafts:
The appellants argued that duty was paid through demand drafts, which were confirmed by their bank. The Tribunal found the Commissioner's observation that there was no proper evidence regarding the drafts to be factually incorrect. It was established that the appellants had indeed sent the drafts, and the amounts were credited to the Commissioner of Customs' account.

4. Liability of the Principal for the Acts of the Agent under Section 147 of the Customs Act, 1962:
The Tribunal examined Section 147 and concluded that the appellants were not liable for the mala fide acts of the clearing agent. The acts of substituting goods and faking Bills of Entry were not actions required of an importer under the Customs Act. The Tribunal noted that liability under Section 147(3) falls on the agent if the act is wilful, negligent, or a default.

5. Collusion or Negligence by Customs Preventive Officers:
The Tribunal observed that such large-scale breaches of Customs procedures could not have occurred without the connivance or negligence of Customs Preventive Officers. The appellants could not be held responsible for these breaches, as the duty amounts were credited to the Customs account.

Conclusion:
The Tribunal allowed the appeals, setting aside the order of the Commissioner. It held that the appellants had paid the duty via demand drafts, and any misuse of these amounts by the clearing agent or Customs officers did not warrant a demand of duty or penalties on the appellants. The Tribunal emphasized that the appellants were not liable for the fraudulent acts of the clearing agent and that the duty was deemed paid on the date the demand drafts were deposited.