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TMI Blog2016 (6) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... t 1963. The observations made by the first appellate authority that there is no evidence on record that the goods, for which duty has been demanded are lost or destroyed. Accordingly the quantity not accounted for by the custodian has to be treated as pilfered under Sec 23 of the Customs Act 1962 and Custodian is responsible for paying duty on such unaccounted imported goods under Sec 45(3) of the Customs Act 1962. Accordingly, no reason found to interfere with the orders passed by the first appellant authority & the same is required to be upheld. - Decided against the appellant - C/304/06 - FO/A/75308/2016 - Dated:- 29-4-2016 - Dr. D.M. Misra, (Judicial) Member and Shri H.K. Thakur, Member(Technical) Shri A.K. Jana, Adv. S.K. Oma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that the entire quantity pertaining to these bills of entry has been washed away in cyclone and refused to pay duty. That appellant was issued a SCN dt 14/8/2003 under Section 45(3) read with Sec 48 of the Customs Act 1962 demanding duty, interest and for imposing penalty. The show cause notice dt 14/8/2003 was confirmed by the Adjudicating authority upheld by the first appellate authority. 2.1 Learned Advocate. Appearing on behalf of the appellant strongly argued that a super cyclone hit Pardip Port on 29-30/10/99 and the LAM Coke now not accounted for was washed away. That on 31/1/2000 M/s MESCO surrendered the plat allotted to them in the port area by the appellant. Learned Advocate also made the bench go through Permit No. 99 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of clause (a) of Section 7 of Custom Act 62 under notification no. 62/94-Cus(NT)dt. 21.11.94 as amended for unloading of imported goods. M/S PPT has been authorized and appointed as custodian and all imported goods unloaded in port remain their custody till these are cleared for home consumption or are warehoused or transhippeas provided in the law. The PPT having the custodian after taking over the imported goods from the carrier, arrange its proper storage and safety and allow clearance to the importers only after they fulfill all the Customs formalities, pay up requisite duties and other charges/ fees and discharge various other obligations before their goods are allowed entry into the country and the Customs have given permiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence this argument is untenable. Thus liability arising out of a contract made between custodian and the importer would have to be derived upon in the light of the contractual stipulations, by themselves and in the light of such contract, the custodian cannot be exonerated from his responsibility under the Customs Act. Sections 23 (1) of the Customs Act 62 excludes from its purview goods pilfered before clearance for home consumption. In this case there was no proof that the imported goods have been lost or destroyed. Section 45 (2) of the Customs Act 62 provides that the person having custody of any imported goods in a Customs area whether under the provisions of sub section (1) or under any law for the time being in force- (a) shall ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or destroyed. The importer submitted bills of entry on 16.12.99 for 30001.5 mt. of LAM Coke and these bills of entry were assessed provisionally to duty on 17.12.99. Since the importer was fully satisfied about existence of 30001.5 mt. of LAM Coke in port area as on 16.12.99, he submitted bills of entry for home consumption and thus it appears that the pilferage took place after the order of clearance of the goods was made by the proper officer of Customs, but before the physical clearance of the goods from the port area. 4.1 Sec 45 of the Customs Act 1962 is very relevant, so for as the responsibilities / duties of the custodian of imported goods are concerned and is reproduced below:- Sec 45. Restrictions on custody and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed by the appellant. Imported goods lying in the Customs area in the custody of the appellant can only be cleared on payment of duty and can not be handed over to an importer by taking shelter of Sec 42 43 of the Major Port Trust Act 1963. The observations made by the first appellate authority that there is no evidence on record that the goods, for which duty has been demanded are lost or destroyed. Accordingly the quantity not accounted for by the custodian has to be treated as pilfered under Sec 23 of the Customs Act 1962 and Custodian is responsible for paying duty on such unaccounted imported goods under Sec 45 (3) of the Customs Act 1962. Accordingly, we find no reason to interfere with the orders passed by the first appellant a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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