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TMI Blog2014 (6) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods if after importation and unloading, the imported goods are pilfered - adjudicating authority has held that the goods were unloaded in the Customs area. However, adjudicating authority is silent about the fact whether 100% of the manifested goods were received in the on shore tank and also whether the goods were pilfered after unloading in the Customs area. Pilferage of the imported goods takes place while the goods were in the custody of the custodian which has to be established by Revenue by way of an FIR and a police report. None of above twin requirement has been brought on record. In the present proceedings, a shore outturn report was jointly prepared by the surveyor, terminal operator, in the presence of Customs officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness of operating port at Mundra. The appellants have also been designated as Custodian under Section 45 of the Customs Act, 1962. On 22.04.2004, shipping line viz. M/s Sea World Shipping and Logistics Pvt. Ltd. filed prior Import General Manifest for 5,221.00 M.T. before arrival of cargo at Mundra Port. On 26.04.2004, vessel named M. T. Argoat Voy. 024 carrying cargo arrived and declared the cargo as condensate Crude Peroleum Oil (CPO). The vessel was berthed at 12.06 Hrs. On 27.04.2004, the Customs and Surveyor formalities were completed and the discharge of the cargo commenced at 16.15 Hrs. and the same was completed at 16.48 Hrs. In the presence of the importers nominated surveyor, Terminal Operator and Customs Officers, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri-Mum)] 2.2 He further argued that the goods in question are factually liquid cargo and customs duty on the quantity mentioned in shore tank is to be taken into consideration for demanding customs duty in terms of CBEC Circular No. 96/2002-Cus dated 27.12.2002. He also cited the following case laws in support of his argument that duty is leviable on actual quantity discharged into shore tank and not on the basis of ullage survey report: i) General Foods Ltd Vs CC [2008 (232) ELT 750 (T)] ii) Mangalore Refinery Petroleum Ltd Vs CC [202 (141) ELT 247 (T) iii) Acalmar Oils Fats Ltd Vs CCE (Appeals) Hyderabad [2007 (215) ELT 110 (T) iv) CCE Ludhiana Vs Amrit Enterprises Ltd 2007 (21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mport General Manifest a quantity of 4722.040 MT was received in on shore tank from vessel M T Argoat. It is the case of the appellant that the said quantity was never received in the tank on 27.04.2004. That the discharge of the cargo was completed at 16.48 Hrs on 27.04.2004 and a protest was lodged with the master of the vessel at 17.00 hrs on the same day, with a copy to the Customs Department, importers, surveyors and Customs House Agent. It is observed that the adjudicating authority under OIO dt.27.12.2005, issued on 09.01.2006, has confirmed the duty invoking the provisions of Section 45 (3) of the Customs Act, 1962. Section 45 of the Customs Act, 1962 is reproduced below:- SECTION 45. Restrictions on custody and removal of imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt.27.12.2005, the adjudicating authority has held that the goods were unloaded in the Customs area. However, adjudicating authority is silent about the fact whether 100% of the manifested goods were received in the on shore tank and also whether the goods were pilfered after unloading in the Customs area. In this regard, the appellant had relied upon the judgment of CESTAT Mumbai in the case of CC Mumbai Vs Board of Trustees of the Port of Mumbai - [2008 (182) ELT 260 (Tri-Mum)]. CESTAT Mumbai has held in Para 4 as follows:- 4. On considering, it is to be held that pilferage , if proved, will result in duty liability on the custodian of the goods. The custodian is the MPT at Mumbai. However, before such shift of duty li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terminal operator, in the presence of Customs officers and the custodian on 30.04.004. A protest was also lodged by the appellant within half an hour of the discharge of cargo on 27.04.2004. Based on the facts and circumstances available on record, it cannot be said that the entire quantity of the imported goods as shown in the Import General Manifest was received by the custodian. Further, as per the procedures prescribed by the Revenue under Circular No.96/2002-Cus, dt.27.12.2002 also even duty has to be demanded from the importer for the quantity of liquid cargo received in shore tanks and not on the basis of ullage Survey report. In the absence of any establishing report of pilferage of imported goods, when the goods were under th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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