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TMI Blog2022 (2) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of India, which is a legal body, the appellant has to be given a further chance to establish their case. The appeal is allowed by way of remand to the Commissioner and he is directed to give a chance to the appellant to file objections / counter representations on the inquiry report under Regulation 12(6) of HCCAR, 2009. - Customs Appeal No.40050 of 2021 - Final Order No. 40066/2022 - Dated:- 10-2-2022 - Ms. Sulekha Beevi C.S., Member (Judicial) Shri A. Ganesh, Advocate for the Appellant Ms. Sridevi Taritla, ADC (AR) for the Respondent ORDER The appellant is aggrieved by the penalty of ₹ 40,000/- imposed under Regulation 12(8) of Handling of Cargo in Customs Area Regulation, 2009 (herein after referred to as HCCAR, 2009). 2. Brief facts are that the appellant is constituted under the Airports Authority of India Act, 1994 and was granted custodianship inter-alia of the export cargo. They have to comply with the provisions of Customs Act, 1962, Rules, Regulations and instructions issued from time to time, as per the HCCAR, 2009, issued vide Customs Notification No. 26/2009-Cus. (NT) dated 17.3.2009, custodian is duty bound to be diligent in dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storing of the cargo for the projected capacity and for the examination and other operations as may be required in compliance with any law for the time being in force; (iii) insurance for an amount equal to the average value of goods likely to be stored in the customs area based on the projected capacity, and for an amount as the 2[Principal Commissioner of Customs or Commissioner of Customs, as the case may be] may specify having regard to the goods which have already been insured by the importers or exporters. (2) Undertake to bear the cost of the Customs officers posted, at such customs area, on cost recovery basis, by the 2[Principal Commissioner or Commissioner] and shall make payments at such rates and in the manner prescribed, unless specifically exempted by an order of the Government of India in the Ministry of Finance; (3) Execute a bond equal to the average amount of duty involved on the imported goods and ten per cent of value of export goods likely to be stored in the customs area during a period of thirty days and furnish a bank guarantee or cash deposit equivalent to ten per cent of such duty: 4 [Provided that the condition of furnishing of bank guarante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) demarcate separate areas for unloading of imported goods for their storage with respect to the category of importers, nature of goods, place of destination, mode of transportation or any other criterion as the 3[Principal Commissioner of Customs or Commissioner of Customs, as the case may be] may specify having regard to the custody and handling of imported goods in a customs area; (e) demarcate separate areas for loading of export goods for their storage with respect to categories of exporters, nature of goods, examined and sealed containers or other criterion as the 3 [Principal Commissioner of Customs or Commissioner of Customs, as the case may be] may specify having regard to the custody and handling of export goods in a customs area; (f) not permit goods to be removed from the customs area, or otherwise dealt with, except under and in accordance with the permission in writing of the 1 [Superintendent of Customs or Appraiser]; (g) not permit any export cargo to enter the customs area without a shipping bill or a bill of export having been filed with the 1 [Deputy Commissioner or Assistant Commissioner of Customs]; (h) not permit any import cargo to enter th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in any other manner transfer any of the premises in a customs area; or sub contract or outsource functions permitted or required to be carried out by him in terms of these regulations to any other person, without the written permission of the 3 [Principal Commissioner of Customs or Commissioner of Customs, as the case may be]. (3) The Customs Cargo Service provider shall publish and display 4 [at prominent places including website or webpage of the Customs Cargo Service provider] the schedule of charges for the various services provided by him in relation to the imported goods or export goods in the customs area. 4. During surprise check conducted by the officers of the department at the Export Shed on 24.8.2019, it was noticed that the goods of various exporters were placed on a single trolley which can lead to mix up of the cargo. Further, there was no proper segregation of the sterile area of the appellant and the other custodian M/s. Air India. 5. It was time and again noticed that the security personnel were not properly verifying the ID cards of the people entering the customs area and the list of persons who have been issued ID was not furnished to the custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009. The inquiry officer simply sated that during the visit of customs officers to the export shed, it had been time and again noticed that the security personnel are not properly verifying ID cards of the people entering the customs area to prevent access of unauthorized people. The report of the inquiry officer does not show that he had examined any witness to prove such allegation. 9. The ingredients of Regulation 6(1)(b) and (f) are not at all attracted or established in this case. The inquiry officer has reported that a recent attempt to smuggle red sanders under cover of the copy of shipping bill dated 13.9.2019 had happened and that the bond had been closed by the custodian without checking the LEO status electronically. In this regard, the appellant submits that after introduction of EDI system, the export and import activities are fully dependent on the message exchanged from customs to appellant and vice versa which is in tune with the Government of India Notification to achieve paperless transactions. As the EDI concept is yet to be synchronized fully with the Integrated Cargo Management System, there are several hitches in the free flow of the shipping bills which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, reply to the Show Cause Notice as well as the inquiry report. The penalty imposed is legal and proper and does not require any interference. 12. Heard both sides and perused the records. 13. On perusal of records, it is seen that though the appellant has filed a reply to the Show Cause Notice, they have not filed any objections / counter representations after receiving the copy of the inquiry report. Regulation 12 of HCCAR, 2009 provides for the procedure for suspension or revocation of approval and imposition of penalty. The same reads as under:- (6) The Principal Commissioner of Customs or Commissioner of Customs, as the case may be shall furnish to the Customs Cargo Service provider a copy of the report of the Assistant Commissioner or Deputy Commissioner of Customs and shall require the Customs Cargo Service provider to submit within the specified period not being less than thirty days any representation that he may wish to make against the findings of the Assistant Commissioner of Customs or Deputy Commissioner of Customs. 14. As per Regulation 12(6), the appellant is to file a representation on the inquiry report within 30 days from the receipt of the inq ..... 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