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TMI Blog2018 (4) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 62,97,331/- involving custom duty of Rs. 96,66,209/- were found to be short and not accounted for by the 'Licence Holder' being a 'Licensed Warehouse-keeper' and has violated the conditions of the License and therefore a demand of said custom duty is payable by them. The Appellant filed reply to the SCN contending that the demand has been wrongly made as the show cause notice has been issue without jurisdiction. That the theft was committed from the duty free shop located inside the high Security Area of the Airport by the constables of CISF and police. That even one of the keys of the warehouse was in custody of the Customs Department and that the goods cannot be said to be unaccounted. The Assistant Commissioner confirmed the demand against the Appellant. The Appellant filed appeal before the Commissioner (Appeals) who ordered for pre-deposit of Rs. 30 lakhs. The Appellant against the said stay order approached the Tribunal. During pendency of the appeal before Tribunal the Appellate Authority dismissed the appeal filed by the Appellant on ground of non compliance of stay Order. The Appellant also filed appeal before the Tribunal against dismissal of appeal. The Tribunal vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Vs Commissioner 1996 (88) ELT 795 (TRI) as upheld in 2001 (130) (ELT 19 (SC). She also relies upon the Larger Bench judgment in case of Gupta Metal Sheets Vs. Commissioner 2008 (232) ELT 796 (TRI - LB). She submits that in the given case the duty liability cannot be remitted. 5. We have gone through the facts of the case and submission made by both the sides. The Appellant has been issued Private Bonded Warehouse licence by the Assistant Commissioner of Customs by issuing Licence No. 3/2016 dt. 21.10.2016. In terms of the licence more particularly contion No. 13 which states as under : "Licncee is also required to have a valid insurance policy in the name of jurisdictional Commissioner of Customs for all imported materials available in the Bonded Warehouse". Following the compliance with the terms and conditions of the Licence the Appellant got the goods insured against theft, pilferage, fire , accident and other natural calamities, risk against rioting at least for value equal to the customs duty by a comprehensive insurance policy. We also note that one of the keys of the licenced premises was with the department. The area is located in high security of the Airport, rou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, which provides for remission of duty on imported goods, reads as follows : "Remission of duty on lost, destroyed or abandoned goods. - (1) Without prejudice to the provisions of Section 13, where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs that any imported goods have been lost (otherwise than as a result of pilferage) or destroyed, at any time before clearance for home consumption, the Assistant Commissioner of Customs or Deputy Commissioner of Customs shall remit the duty on such goods. (2) The owner of any imported goods may, it any time before an order for clearance of goods for home consumption under Section 47 or an order for permitting the deposit of goods in a warehouse under Section 60 has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon. Provided that the owner of any such imported goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force." Sections 58 of the Customs Act, 1962 read as follows : "58. Licensing of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed under Section 23. It is a settled position in law that specific provisions shall prevail over the general provisions. The Tribunal Larger bench in case of M/s Avis Electronics Pvt. Ltd. 2000 (117) E.L.T. 571 (Tri.-LB)] held that when a particular thing is directed to be performed in a manner, statutorily, it should be performed in that manner itself and not otherwise. Similar views were expressed by the Hon'ble High Court of Gauhati in case of CCE Vs. Jellalpore Tea Estate 2011 (268) E.L.T. 14 (Gau.) wherein the Hon'ble Court held that "what is required to be done in a manner prescribed by law, ought to be done in that manner only or not at all." In such a case as the Appellant has insured the goods for the Customs duty involved on the goods deposited in the warehouse in favour of the Commissioner of Customs, they are entitled for the benefit under Section 23 of the Customs Act. Therefore, demand of Customs duty on the warehoused goods which has been stolen cannot be demanded from the Appellant. The judgment cited by the revenue and relied upon by the adjudicating authority stands on different footing as those judgments are not in relation to warehoused goods of which du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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