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TMI Blog2021 (12) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... f Entry with the intention to evade customs duty which was thereafter seized and handed over to the appellant-custodian. Subsequently, i.e, on 25.10.2017 it appears that SIIB had noticed that the above goods were removed by the CFS on 23.10.2017 at 22.45 hrs. and it was found later that the goods were removed out of CFS by one Shri U. Magesh and R. Prabhakaran on the instructions of Mr. Hariprabhu and Mr. Thirumalai Thyagarajan of Raj Brothers Shipping Pvt. Ltd. The appellant has seriously made allegations against the Revenue and has tried to justify its action on the grounds of having obtained certain documents from the CHA, but it is not at the instructions of the person who authorized detention in the custody of the appellant. There was also allegations that the appellant was not made known the reasons of seizure or the progress in the investigation, but suffice it to say that a CFS need not know the reasons for seizure and detention since such actions are initiated for prevention of evasion of duties by means of smuggling, mis-declaration etc., in the national interest. The CFS has failed in discharging the assigned duty diligently. On the contrary, strangely and in utter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Freight Station, Kanakkanchathram, Madhavaram, Chennai-600 110 (in short CFS) as provided under Section 45(1) of the Customs Act, 1962 read with Handling of Cargo in Customs Area Regulations, 2009. 1.3 On 25.10.2017, it came to the notice of SIIB that the goods covered under Bill of Entry No. 3325365 dated 21.09.2017 imported by M/s. Rashi Traders have been illegally removed from the CFS on 23.10.2017 in the night at 22.45 hrs. by submitting forged documents to the custodian. In the course of investigation, it was found that the goods were removed out of CFS by U.Magesh and R.Prabhakaran on the instructions of Mr. Hariprabhu and Mr. Thirumalai Thyagarajan of Raj Brothers Shipping Pvt. Ltd. 1.4 Thereafter, voluntary statements of the staff of CFS were recorded, a mahazar was also drawn and thereafter, a show cause notice (SCN) dated 02.07.2018 was issued on the grounds that the appellant had violated some of the provisions mentioned at paragraphs 6 to 13 of the SCN and thereby proposing as to why: i. The Public Notice No. 8/2001 dated 29.01.2001 addendum Public Notice No. 22/2005 dated 28.01.2005 issued to them notifying CFS at NDR Estate, Kanakkanchtram, G.N.T. Road, Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged violations of provisions of HCCAR, 2009. The respondent has not only predetermined but has also prejudged the issue as the show cause notice and resultant order-in-original passed by him is stereotyped and repetitive manner without even whispering about the alleged violation of the provision of the law invoked against the appellant. The respondent has not even explained as to why Section 45 (3) has been invoked, imposition of payment of duty by the appellant for the second time is totally erroneous and liable to be struck down. The respondent has relied on unconnected, wrong and erroneous facts, and proceeded to pass the impugned order in an automatic and mechanical manner. The appellant has neither violated Section 45 (3) nor the regulations under HCCAR which has been duly explained vide its reply, judicial submissions, judicial decisions, written objections and oral representations. The respondent failed to note that the appellant had not only been co-operating with the Customs Department in terms of Customs Act and HCCAR but had taken all bona fide steps not only to report but also complain and retrieve more than 96-97% of the cargo which is also admitted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iner and customs, which is in the usual practice. The respondent failed to adjudicate on various pertinent issues and pass a speaking order, especially regarding the role of the liner, whether the original Bill of lading was surrendered or not, if so by whom, whether the delivery order was issued on such surrender, whether the Bill of Entry was filed with liner or not, whether the liners had listed the subject container as long outstanding to the appellant for any alleged detention lost to them, whether detained for non-issuance of delivery order by the liner, whether empty container was returned or not, and what documents were alleged forged, till date. The respondent failed to note that the regulations were passed by the Customs only after the subject incident, vide Standing Order No. 48/2017 dated 28.11.2017 and Letter F.No. S. Misc. No. 172/2017-SIIB, dated 1/11/2017, which has not been considered by the respondent at all. The respondent failed to note that customs do not pass any separate order or permission in writing for detained cargo, which is usually released by customs on furnishing of some guarantee and indemnity provisionally. Hence, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Brothers Shipping Pvt. Ltd. 5.3 In the Order-in-Original, the Commissioner has found interalia that the custodian had given the delivery of the seized goods by accepting cash of ₹ 1,05,000/-, without generating any invoice for the same and that the CHA who came and took delivery did not provide its GST Number. Further, he has also observed, upon looking into the records, that the subject container was illegally removed at midnight of 23.10.2017 by accepting cash payment. The authority has also found from the cash register of the custodian that the cash was received on 27.10.2017 and the computerized invoice was generated by the custodian on 26.10.2017. These undisputed facts give rise to a reasonable suspicion as to the motive behind releasing the goods at such odd hours of the night of 23.10.2017 itself, that too after accepting cash payment on a later date. 5.4 Section 45 of the Customs Act, 1962, dealing with clearances of imported goods, prescribes restrictions on custody and removal of imported goods. Further, Section 45(1) authorizes the granting of custody of imported goods with such approved person, until the same are cleared, as prescribed. Section 45 (2) pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for seizure and detention since such actions are initiated for prevention of evasion of duties by means of smuggling, mis-declaration etc., in the national interest. 6.1 The CFS has failed in discharging the assigned duty diligently. On the contrary, strangely and in utter disregard, it has chosen to act solely on some documents filed by the CHA, which documents later on turned out to be fake/forged, to release the seized goods. This, rather raises serious suspicion as to the due diligence exercised by the appellant. The release in the first place itself was against the statute as well as the instructions of the Government Authority, then the release was made at the odd hours of the night by accepting useless documents that too without proper verification as to the urgency, and lastly, no verification of identity appears to have been made by not cross-checking with the PAN or GST Registration No. etc. of the CHA. Accordingly, I am of the view that there has been serious violations to the Government Regulations as alleged by the Revenue, in as much as the goods were released without there being specific instructions to do so from the Revenue. The only natural consequence, therefo ..... 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