2018 (4) TMI 491 - AT - Customs

Warehoused goods - goods found short - theft/burglary - remission of duty - Held that - No goods would be allowed to be removed from such warehouse without following the customs rules, procedures and payment of duty and there is no dispute that the Appellant scrupulously followed the said conditions. It is with the fact that that under the terms of the licence the Appellant had safeguarded the customs duty by getting issued the comprehensive insurance policy towards customs duty in favour of the Commissioner against theft and all incidents of loss. In such case when the bonded warehouse is under the control of the Customs authorities and the theft has occurred that too by the CISF and Police personal, the appellant cannot be found faulted with. The duty having been adequately safeguarded by insurance policy drawn in favour of the Commissioner. In the present case it is an admitted position that the appellant insured the warehoused goods for that part of the value representing Customs duty on the imported goods. Thus it is clear abidance of the terms and conditions of the warehousing licence issued under Section 58 of the Customs Act and the warehousing bond executed under Section 59. Having followed the terms and conditions of the licence, the appellant is thus entitled to claim the benefit under Section 23 of the Customs Act by remission of duty. The demand of Customs duty on the warehoused goods which has been stolen cannot be demanded from the Appellant - demand set aside - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Jurisdiction of the show cause notice.
2. Liability for customs duty on stolen goods.
3. Compliance with licensing conditions under Section 58 and Section 59 of the Customs Act.
4. Applicability of remission of duty under Section 23 of the Customs Act.
5. Validity of the demand for customs duty on warehoused goods.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Show Cause Notice:
The Appellant contended that the show cause notice demanding customs duty was issued without jurisdiction. They argued that the theft occurred within a high-security area of the airport, and one key to the warehouse was held by the Customs Department, making it impossible for them to account for the stolen goods. Consequently, they argued that the goods could not be considered unaccounted for under Section 72(1)(d) of the Customs Act.

2. Liability for Customs Duty on Stolen Goods:
The Appellant argued that the theft was beyond their control and that the law does not expect a person to do the impossible (lex non cogit ad impossibilia). They asserted that they had fulfilled all conditions of their license, including comprehensive insurance against theft, and thus should not be held liable for customs duty on the stolen goods. The revenue, however, relied on various judgments to argue that duty liability cannot be remitted even in cases of destruction or theft of warehoused goods.

3. Compliance with Licensing Conditions under Section 58 and Section 59 of the Customs Act:
The Tribunal noted that the Appellant had complied with the terms and conditions of their Private Bonded Warehouse license, including maintaining a comprehensive insurance policy in favor of the Commissioner of Customs. The Tribunal emphasized that the goods were in joint custody of the Appellant and the Customs Department, as one key to the warehouse was held by the department. The high-security location and round-the-clock security further demonstrated that the Appellant had taken adequate precautions to safeguard the goods.

4. Applicability of Remission of Duty under Section 23 of the Customs Act:
The Tribunal highlighted Section 23 of the Customs Act, which allows for remission of duty on imported goods that are lost or destroyed before clearance for home consumption. The Tribunal found that the Appellant had insured the warehoused goods for the value representing customs duty, thus complying with the specific provisions under Section 58 and Section 59. The Tribunal held that specific provisions relating to warehousing should prevail over the general provisions of Section 23, entitling the Appellant to remission of duty.

5. Validity of the Demand for Customs Duty on Warehoused Goods:
The Tribunal concluded that the demand for customs duty on the stolen warehoused goods could not be upheld. The Tribunal reasoned that the insurance policy in favor of the Commissioner of Customs was intended to cover such losses, and the Appellant had fulfilled their obligations under the licensing conditions. The Tribunal also noted that the judgments cited by the revenue were not applicable to the present case, as they did not involve warehoused goods insured for customs duty.

Conclusion:
The Tribunal set aside the impugned order demanding customs duty from the Appellant and allowed the appeal with consequential reliefs. The Tribunal emphasized that the Appellant had adequately safeguarded the customs duty through insurance and had taken all necessary precautions to protect the goods, thus no duty could be demanded from them.