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TMI Blog2015 (7) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the role of CFS as custodian and role of CHA are far different and cannot be termed as pari materia. Suspension was ordered only in December 2004 and the Custom Department is yet to complete their investigation. We also find that seized containers are recovered by the police the subsequent investigation and filing of charge sheet by the police is still pending. Therefore, by considering the serious nature of offence and breach of conditions of regulations and also taking into account the past adverse instances and conduct of the appellant of identical smuggling of Red Sanders and other goods detected in appellant s own premises, we hold that the bonafide and credibility of conduct of custodian-appellant raises serious doubt and the investigation by Customs and Police authorities is still pending and yet to be completed and if appellants are allowed to continue as custodian it will certainly cause jeopardy and hamper the process of investigation. Accordingly, we hold that appellant s plea for setting aside the suspension order does not merit consideration and the suspension order is liable to be upheld. - Decided against Appellant. - Appeal No. C/EH/40203/2015, C/MISC/40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 203. The Container bearing No.SEGU 1697558 containing Red Sander logs weighing 9430 Kgs was seized by Customs (DIU) under mahazar dt. 6.3.2014 and the same was handed over to the appellant (Custodian) for safe and secure custody of the seized cargo. There was an incident at appellant (CFS) premises on 19.12.2014, and it came to notice that the said container was removed unauthorizedly on 19.12.2014 by using forged documents. On preliminary scrutiny of the documents prima facie it appeared that illegal removal of seized goods due to failure on the part of custodian not ensuring safety and security of the seized goods kept under the appellant's custody. Since the nature of offence was very serious and cast doubt on the bonafides of the appellant, the proceedings were contemplated. The Commissioner of Customs by virtue of powers vested under Regulation 11 (2) of Handling of Cargo in Customs Area Regulations, 2009 (HCCAR, for short) ordered suspension of their CFS custodianship. Hence the present appeal. 7. Heard Both sides. Ld. Advocate appearing on behalf of the appellant filed a paper book containing summary of arguments, relevant documents, case laws etc and reiterated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in the offence. The police is yet to complete the investigation. 7.2. He submits that suspension order was issued by The Commissioner of Customs is not sustainable. The department has not made out any specific charge in the suspension order and also submits that there is no connivance or any failure on the part of the appellant. The lapse and connivance of employees cannot be attributed to the appellant and it is only an isolated single incident. As per Regulation 11 (2)of HCCAR the authorities can suspend the custodianship only when there is an enquiry is contemplated. Since in the suspension order has not brought out any charge the suspension order is in violation of the said regulations. He also submits that CHALR, 2009 is pari materia to HCCAR, 2009. He also relied on copy of the order dt. 4.2.2015 of Judicial Magistrate -I, Ponneri which is in Tamil and submitted a free translation in English wherein the Hon ble Lower Court has ordered interim custody of the said container on execution of bond. He also countered all the points raised by customs in their counter affidavit and submits that the department is alleging the past incidences of smuggling of Red Sanders, Muria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s initially the appellant stated that empty container SEGU 1697558 was brought inside the CFS but subsequently, they themselves stated that said container was stuffed with wooden pieces of mango/coconut/palm woods. This confirms that appellant being custodian is not aware of the contents of the container nor verified the weight. They fail to notice removal of seized container affixed with sticker with false container number GEST1896575 and pasted on it. 8.2 He further submits that it is the Superintendent of Customs in charge of CFS who first noticed the lapse and informed the CFS and the Custom House on 19.12.2014. It was only on 22.12.2014, the FIR was filed. The copies of Mahazar dt. 8.1.2015 drawn by police submitted to the Customs did not contain cement bags whereas the second copy of the mahazar dt. 8.1.2015 shows cement bags. They have admitted the role of their employees in the illegal act of removal of seized container. 8.3 He further submits that this is not the first instance of lapse of safety and security of containers under HCCAR as claimed bythe appellant. In the year 2009, an offence case was registered against M/s.Point to Point, an exporter for an attempt to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and adjudication proceedings. There is no dispute on the fact that said seized container was illicitly / fraudulently removed from appellant CFS by adopting modus operandi in such a way that the seized container has been substituted with another fake container No.SEGU-1796588 which was illicitly brought inside appellant CFS and replaced in the seized container'S place by affixing sticker of seized container No.1697558. Appellants initially stated that it was an empty container whereas the fake container contained wooden logs. It is also on record that the said seized container SEGU-1697558 was removed/cleared out of appellant CFS by using forged gate pass and false container No.SEGU-1896575 were affixed on the seized container by sticker. From the above, it is clear that the seized container No.SEGU 1697558 was illicitly removed which was in the custody of the appellant and they have admitted these facts. The appellant s main contention that they have not involved in the modus operandi of illicit removal but only two of their employees Mr. Kanagavel, Operator and Mr. Gautham, Shift Supervisor have indulged in the fraudulent activity. They also vehemently contended that it is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Customs cargo outside port of import the entire customs cargo clearance was being done only at the port itself which was handled by the Port Trust Authority who are appointed under the Port Trust Act. We are unable to accept the appellant contention that it is stray and isolated incident of lapse of security of cargo as it is evident from the Revenue' counter affidavit that similar instance of smuggling of Red Sanders, Muriate of Pottash (Mop) restricted item have been seized in the past in 2009 and 2013 in the appellant CFS. In the case of smuggling of Muriate of Pottash, a restricted item and adjudication order was passed vide OIO No.15880/2011 dt. 5.5.2011 where the goods were confiscated and the appellants were imposed with penalty and this Tribunal dismissed their appeal for non-compliance of pre-deposit vide Order No.40132, 40133/2013 dt. 23.4.2013. In the case of smuggling of Red Sanders another offence case was registered in September 2013 and Customs seized 14.750 MTs of Red Sanders in appellant s own premises. On perusal of SCN dt. 12.9.2004 issued by Commissioner of Customs, Chennai, the modus operandi adopted is identical to the present case where the substitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l pending. Therefore, by considering the serious nature of offence and breach of conditions of regulations and also taking into account the past adverse instances and conduct of the appellant of identical smuggling of Red Sanders and other goods detected in appellant s own premises, we hold that the bonafide and credibility of conduct of custodian-appellant raises serious doubt and the investigation by Customs and Police authorities is still pending and yet to be completed and if appellants are allowed to continue as custodian it will certainly cause jeopardy and hamper the process of investigation. Accordingly, we hold that appellant s plea for setting aside the suspension order does not merit consideration and the suspension order is liable to be upheld. However, we direct the Commissioner of Customs, Chennai to complete the investigation proceedings and take appropriate action under HCCAR as expeditiously as possible preferably within 3 months subject to receiving the investigation report from Police authorities. We make it clear that Commissioner of Customs shall not be prejudiced by this order and is at liberty to decide independently based on the facts and evidences available ..... X X X X Extracts X X X X X X X X Extracts X X X X
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