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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 ..... d their EH application on 29.4.2015. The above MISC application is taken up today. 3. Ld. Advocate appearing on behalf of the applicant submits that though the application was filed requesting that their case to be heard by the same Bench now, they are not insisting on the miscellaneous application and he is prepared to argue the case and submits that miscellaneous application may be disposed. The Ld. AR on behalf of the Revenue strongly objects their plea for reconstitution of the earlier Bench for no valid reasons. 4. After hearing both sides, we find when their case is at the preliminary stage and their application for early hearing is still pending for consideration, the applicant filing another application seeking their case to be heard by the same Bench is not maintainable as there is only one Division Bench functioning. Since the applicant themselves not insisting on their request the Misc. Application dt. 12.4.15 is rejected. 5. The E.H. application was taken up and considered their grounds and after disposing the MISC application for early hearing, the main appeal itself is taken up for disposal. 6. The brief facts of the case is that appellants viz. M/s. Chandra CFS a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of Customs and also submitted a letter dt. 20.12.2014 addressed to the Asst. Commissioner of Customs (Docks). Immediately they filed a complaint and FIR (No.558/2014) with local police station at Minjur and also filed additional complaint before the Superintendent of Police for retrieval of seized container. They have identified the employees Mr. Kanagavel, Indital Operator and Mr.Gowtham, who were suspects in committing the offence. The police arrested Mr.Kanagavel. 7.1 Police retrieved the container on 22.12.2014 from the jurisdiction of Puzhal Police Station and the same was brought to Minjur P.S. They duly reported the retrieval of container by the police to the customs on 22.12.2014. He produced copy of F.I.R, statements recorded by police and also mahazar drawn by the appellant on 30.12.2014 and the police inspected the container and found to contain red sanders with 51 bags of cement. The container was seized by the police and as per the order of Judicial Magistrate of Lower Court the container was handed over to the appellant for safe custody pending investigation by police. He further submits that customs informed before the court their no objection for handing over t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se was registered against M/s.Jayam Plast & Co. who attempted to export red sanders in the container. The sealed container was originally stuffed in the appellant s CFS and the container No.SEGU 1697558 already left the country on specific intelligence it was brought back to India and on examination, the said container was found to contain Red Sanders. He explained the modus operandi adopted that the container was tampered after removal from CFS enroute to the Chennai Harbour and the goods were substituted with red sanders logs. After seizure, the goods were re-stuffed in the same container and was handed over to appellant for safe custody. He submits that an offence case was registered and SCN dt. 5.2.2015 was to the exporter, to the appellants and to all the persons involved in the smuggling of Red Sanders proposing for confiscation of goods under Section 113 of Customs Act and penalty under Section 114 of Customs Act. Copy of SCN enclosed with counter affidavit. 8.1 He further submits that appellant has violated provisions of Regulation 6 (1) (k) and Regulation 6 (2) of HCCAR as they outsourced the security operations of CFS without permission from the Commissioner of Customs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge sheet, the department is yet to complete their investigation. He submits that they have requested the Lower Jurisdictional Court for permission to examine the containers which is under the custody of police. Any revocation of suspension would cause serious jeopardy to the investigation. Therefore he prayed for dismissal of appeal. He relied on the following citations :- (i) Commissioner of Customs Vs Raj Clearing Agency 2006 (199) ELT 602 (Bom.) (ii) Tribunal Final's Order No.40132 & 40133 dt. 23.4.2013 (in Appeal No. C/252 & 253/2001 in appellant's case) 9. We have carefully considered the submission of both sides and perused the records and other relevant documents. The issue in the present appeal relates to suspension of custodianship of the appellant under HCCAR. The appellant was appointed as custodian of import and export of goods at CFS under Section 45 of the Customs Act. The Commissioner of Customs, Chennai in the impugned order suspended the approval granted to the CFS in terms of powers vested under Regulation 11 (2) of HCCAR, 2009. The reasons for suspension of their custodianship has already been set out in the facts of the case as narrated above. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2014. Whereas the appellant on the other hand submits that they have only informed the Customs about missing container. We find that both the police and the Customs have yet to complete their investigation and their veracity of their contentions to be taken by the competent authority based on the evidences only after completing detailed investigation. As already discussed above, we find that there is "Amanat Main Khayanat" breach of obligation entrusted with the custodian i.e appellant for safe and security of the cargo. 11. It is pertinent to see that appellant was duly appointed by the Government as a Container Freight Station in terms of provisions of the Customs Act read with relevant public notice issued by the Customs. It is abundantly clear that being a CFS as a custodian, they are responsible for safe and secure clearance of import cargo in their Container Freight Station and equally responsible for safety and security of the cargo. The government entrusted the work of handling the cargo to the appellant only with the faith that custodian will perform his duties diligently and in a dedicated manner. Appellant cannot plead ignorance of such security lapse of removal seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009, the Commissioner of Customs has rightly exercised the power to suspend the custodianship of appellant. Appellant s reliance on case laws which are related to suspension of CHA licence under CHALR and the appellant s plea is that provisions of CHALR and HCCAR are pari materia not acceptable for the reasons that Container Freight Station (CFS) who is appointed by the Government for handling import and export cargo as Terminal operator cannot be equated with licence issued to Custom House Agent under CHALR. The obligation of custodian of CFS and the role played by them in handling the cargo including safety and security of the cargo are entirely governed by strict conditions as set out in HCCAR whereas the CHA only acts as an agent between customs & importer/exporter in processing of document and clearance of cargo. Therefore, the role of CFS as custodian and role of CHA are far different and cannot be termed as pari materia. Therefore, the citations relied by the Appellant in support of their plea are all related to suspension of CHA licence and same is not applicable to the appellant CFS. We also find that suspension was ordered only in December 2004 and the Custom Department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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