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TMI Blog2007 (4) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... f secondhand photo colour labs on 6-11-99 and filed bill of entry for 4 units through CHA, M/s. International Shipping Agency. It appears that the goods were not cleared and still lying in the docks and therefore the same were listed for auction by the Mumbai Port Trust. When the container was opened for valuation of the goods for auction, only 7 photo colour labs were found and remaining four were short. Investigations were carried out and show cause notice was alleging that 4 photo colour labs were surreptitiously removed by the owner in connivance with the CHA and Port Trust Authorities without payment of duty. Since Mumbai Port Trust Authorities were custodian of goods which were found short, duty was sought to be demanded from them and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national Shipping Agency, in his statement admitted having made entries in the forwarding register of Mumbai Port Trust Shri P.K. Kshetri in his statement admitted that original bottle seal was in tact when the container entered in Sewree Timber Pond. The concerned Shed Superintendent, Assistant Shed Superintendent and Port Trust Security are responsible for unauthorised removal of the goods, once it is established that seal of the container was found intact and the goods were removed from the custody of Mumbai Port Trust who are custodians. Accordingly they are liable to pay Customs duty on 4 pilfered photo colour lab machines as per Section 45 of Customs Act, 1962. 4. Referring to the respondents submission that they were not appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1), that person shall be liable to pay duty on such goods at the rate prevailing on the date of delivery of an import manifest..... In view of this provision duty has been rightly demanded from Mumbai Port Trust and same should have been upheld. 6. The learned Advocate for Mumbai Port Trust submits that Mumbai Port Trust is not responsible for the contents of FCL container and till it is destuffed the ownership of the container remains with the shipping agent. As per their records, the container was for the first time opened on 21-3-2000 for valuation for auction and before this it was not opened at any stage. In the instant case when the container was destuffed only 7 photo colour labs were noticed and 4 units were found short so t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000 kgs. It was submitted that once 7 units weigh only 1401 kgs, 4 remaining units could not have weighed 2000 kgs. There was obvious misdeclaration by the shipping agent/vessel agent and therefore it is not a case of pilferage. 7. He further submitted that even it is taken as pilferage, the duty liability still does not rest on them as they were not appointed as custodian under Section 45 of Customs Act, 1962 nor under Section 85 of erstwhile Sea Customs Act, 1878. Commissioner has in his notification issued in 2000 referred to earlier notification issued under Sea Customs Act, 1878 but could not produce copy of the same. They denied issuance of such notification. It was submitted that they were required to take custody of the goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record that the goods were treated as short landed and vessels agents were notified of the same. This has not been disputed and it appears from the Commissioner (Appeals) order that the vessels agents were not questioned for the same and the DR also could not produce any evidence where vessels agent denied their liability regarding short landing. There are other glaring discrepancies regarding weight and therefore mis-declaration of the cargo by the shippers cannot be ruled out. In view of this, we hold that Revenue has failed to conclusively established that the goods were pilfered while in the custody of the Mumbai Port Trust. In view of the same, liability cannot be fixed on the Mumbai Port Trust as custodian in terms of provisions of 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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