9911796707
TMI Blog2012 (10) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... stuffing/de-stuffing and clearance of export/import goods under Section 8 of Customs Act, 1962 vide Notification No. 1/2000 dated 19-1-2000, and appellants were appointed as custodian of the Container Freight Station (CFS) under Section 45 of the Customs Act, 1962. The appellants have submitted a Custodian-Cum-Carrier Bond inter alia agreeing to comply with all the provisions of the Customs Act as well as Rules and Regulations and instructions made there under issued in this regard from time to time. As per Board's Circular No. 128/1995-Cus., dated 14-12-1995 and Public Notice No. 3/1996 dated 29-1-1996, the Custodian is required to bear the cost of customs staff posted in the CFS and to abide by all rules and regulation under the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, has been invoked for imposition of penalty. Therefore, the penalty cannot be composed on the appellants. He further submitted that as regards the allegations regarding subletting of the Customs Area, they have made some arrangements with their operator for some of the functions in connection with the operation of the CFS. Arrangement existing between the appellant and the operator is an operations and management contract for a period of 15 years w.e.f. 1-2-2007 in lieu of consideration in form of Fixed Upfront Fees, Annual Fees and Performance Bank Guarantees. The arrangement grants in favour of operator the right to operate and maintain the CFS facility and carry on permitted activities as per the agreement. The appellant has complete l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t paid the cot recovery charges and even after expiry of 5 years they were working as custodian without approval from the department. They have transferred some of the functions of the CFS to the operator without prior approval of the Commissioner of Customs. Learned DR referred to the letter dated 24-7-2007 of the appellant wherein it was stated that CFS of the appellant has been leased out to the operator for its operations and management. He, therefore, submitted the order-in-original is proper and legal and needs to be sustained. 6. After hearing both sides. I find that short question in this case is whether appellant have violated any of the conditions of the Board Circular dated 14-12-1995 and Public Notice No. 3/96 with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore Commissioner's finding for violation of this condition is also sustained. 7. It is a fact that in the show cause notice no specific provisions has been quoted for imposition of penalty and under Section 117 of the Customs Act, the penalty is imposable for violating any provision of the Customs Act, only in those cases where no specific provisions has been made for imposition of penalty. Non mention of the Section 117 of the Customs Act in show cause notice will not vitiate the imposition of penalty, since Section 117 is a general provisions for imposition of penalty. Hence penalty was rightly imposed by the Commissioner of Customs under Section 117 of the Customs Act. However, in the facts and circumstances of the case and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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