1990 (9) TMI 164 - AT - Customs

Summary

Issues:
Violation of Section 45(2)(b) - Liability of custodian for substitution and pilferage of goods in custody.

Analysis:
The case involved an appeal against the Order of Additional Collector of Customs, Airport, New Delhi, dated 13-4-88. The appellants, the Central Warehousing Corporation (CWC), were the custodians of air cargo pending clearance by Customs. Customs discovered that some imported cargo was being substituted while in CWC's custody. The show cause notice alleged that CWC failed to prevent the substitution, penalizing them Rs. 1000 for violating Section 45(2)(b) by not ensuring safe custody of goods. CWC argued they took necessary precautions and the substitution might have occurred elsewhere. They highlighted their security measures and contended that the substitution did not happen under their watch.

The learned SDR argued that CWC failed to take sufficient precautions, leading to the substitution and pilferage of goods while in their custody. However, the tribunal found merit in CWC's defense. CWC detailed their security arrangements, which the department did not dispute. The tribunal noted that under Section 45(2)(b), a custodian must ensure safe custody and prevent unauthorized removal of goods. While there was evidence of substitution and pilferage, the involvement of fictitious consignees suggested a broader conspiracy, not necessarily implicating CWC. The tribunal emphasized the lack of evidence showing CWC's deliberate negligence or participation in any conspiracy. It also considered the possibility of substitution before CWC took custody. Ultimately, the tribunal concluded that the violation of Section 45(2)(b) was not proven, setting aside the Additional Collector's order based on assumptions and suspicions rather than concrete evidence.

In conclusion, the tribunal accepted the appeal, ruling in favor of CWC. The judgment highlighted the importance of evidence in establishing liability and emphasized that custodians like CWC must take necessary precautions but cannot be penalized without concrete proof of negligence or direct involvement in any wrongdoing.