9911796707
TMI Blog2022 (10) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... re admittedly opened for the first time by the Police Officer, wherein the packing material was found instead of Nutritional Supplements as purportedly imported. From the reports submitted by the local Commissioner appointed by the Hon ble High Court, it is evident that he visited the site and thereafter reported that no goods were in existence at the place - customs bonded premises. The Commissioner also indicated that the FIR has been lodged with the Police, which is under investigation. The conduct of the importer also to be dubious as initially he filed bill of entry for warehousing on 4.7.2016. Thereafter, after about 15 days, he has filed request for converting the warehousing bill of entry into a bill of entry for home consumption, which was allowed on 22.07.2016, still importer did not take the delivery and again requested on 1.8.2016 for reconversion of the bill of entry to that of warehouse, which was allowed on 02.08.2016 and immediately thereafter on 5.8.2016 intimated the Customs that he has found a buyer and requested that the goods may be allowed for third country export. Further, such request was repeated on 24.05.2017 stating that they have received purchase o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of goods for export to third country) was adjudicated by Joint Commissioner of Customs (vide Order dated 8.6.2017 as referred in the impugned SCN/OIO) and the importer was given an option to export after deposit of fine and penalty. The importer deposited such dues. From the date of warehousing, the subject goods were lying in the warehouse, in the same condition. The subject goods had not been opened/handled by the appellant, except 2 pallets had to be separated from the remaining, due to termite attack. The said goods (including the 2 pallets which were separated) are still lying in the warehouse. 9. On obtaining permission for export, importer approached the appellant for release of the subject goods; Appellant directed the importer to pay the warehousing charges of Rs.4,46,487/-, which was duly deposited. Thereafter, the appellant directed Asian Cargo to provide possession of the subject goods to the importer. 10. Importer s authorized representative visited the warehouse, on being shown the subject goods, denied identity and claimed that the goods actually imported were lost. On 22.06.2017, Asian Cargo informed the appellant that the importer is denying ownership o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t denied the allegations by filing interim reply dated 2.8.2018. Since the appellant denied the allegations, the Commissioner appointed Dy. Commissioner (Technical) as Inquiry Officer . The Inquiry officer, after holding the personal hearings, issued Inquiry Report dated 7.8.2019, concluded that the appellant was unable to safely keep the warehoused cargo in its customs cargo bonded area, which had resulted in the subject goods going missing. Thus, the appellant failed to meet or comply its obligations and responsibility under Regulation 5 6 of HCCAR, 2009. 16. That the appellant filed its submissions opposing the inquiry report while refuting the allegations. As the goods appeared missing, CONCOR had filed FIR on 30.06.2017, which was pending investigation. Delhi Police in its investigation opened the packages, and found only packing materials of the brand Muscle Pharma inside the cartons. 17. Ld. Commissioner framed the following issues:- (i) Whether the CONCOR/appellant is liable to pay customs duty along with interest on the goods in question in terms of Section 45(3) of the Act red with Regulation 6(1)(j) of HCCAR, 2009. (ii) Whether the appellant is liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities under Section 5 6 of HCCAR. 22. Further held, CONCOR also failed to fulfill their undertaking to comply with the provisions of the Customs Act and the Rules and the Regulations. Accordingly, they are liable to penalty. 23. So far the proposal of suspension is concerned, it was observed that it is a preventive action. There must be sufficient reasons available to the effect that unless such immediate suspension is ordered, the damage already caused would either continue or likely to continue. Further observed that no such case is made out for action under Regulation 11 read with Regulation 12 of HCCAR. Hence, proposal of suspension /revocation of the approval granted under Regulation 10 of HCCAR was dropped. Being aggrieved, the appellant is in appeal before this Tribunal. 24. Ld. Counsel for the appellant, Shri B.L. Narsimhan, inter alia, submits that there is no evidence that the goods were pilfered while in the custody of the appellant. The impugned order as well as inquiry report merely assumed that the goods were pilfered, which is the sole basis for confirmation of demand. There is no evidence that the packages were subject to physical examination by the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther opened nor examined the contents of the packages at the time of accepting them for warehousing. 28. It is further urged that admittedly, the bill of entry does not contain any physical examination order and further, there is no proof that the identity of the purportedly imported goods was actually ascertained. Further, admittedly, at the time of import or unloading, a requisition sheet filled by the importer for storage of the goods and the Tally Sheet issued by Asian Cargo Movers and the subject goods remained in 10 pallets from the point of import till the time such goods were warehoused. It is further submitted that in normal circumstances, in case of edible goods, sample is required to be drawn and sent for FSSAI or AQCS testing, while the remaining goods remained in the warehouse. However, as the importer had filed bill of entry for warehousing, no such sample was taken out for testing and no gate out pass had been issued for such goods as per the record. Thus, in no circumstance, the appellant dealt with the subject goods directly. Had the goods in question subjected to physical examination or subject to drawal of samples of the goods, the same would have been removed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the ruling in the case of Gujarat Adani Port Ltd. Vs. Commissioner of Customs, Jamnagar 2014 (309) ELT 120 (T-Ahmd.), wherein regarding certain shortages detected in the imported cargo, it was held that no duty liability can be confirmed against custodian in the absence of any evidence on pilferage. Reliance is also placed on the ruling in the case of CC Vs. Board of Trustees of Mumbai Port Trust 2007 (216) ELT 47 (T-Mumbai) and Board of Trustees of the Port of Mumbai Vs. CC, Mumbai 2008 (223) ELT 635 (T-Mumbai). 31. It is further urged that none of the inquiry reports submitted by the local Commissioner appointed by the Hon ble High Court and by Delhi Police on the FIR filed by the appellant nor the inquiry report of the inquiry officer dated 10.05.2019 contain any evidence to confirm the charge of pilferage or that too while the goods were in the custody of the appellant. 32. It is further urged that the report of the Inquiry Officer is not reliable as it simply relies on the report of the Commissioner appointed by the Hon ble High Court, who has only stated that the goods were not produced as the consignment in question was not traceable. In fact, the goods/p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been allowed to be warehoused by the Customs Authorities. The same were accepted without any inspection by the appellant being sealed packages/pallets. Further, admittedly, the appellant, pursuant to order for release of the goods, had offered sealed packages/pallets to the importer for delivery. However, the importerhave disputed the goods without any evidence of pilferage. Further, in the investigation by the Police, pursuant to FIR filed by the appellant, no evidence of pilferage has been found. The packages were admittedly opened for the first time by the Police Officer, wherein the packing material was found instead of Nutritional Supplements as purportedly imported. From the reports submitted by the local Commissioner appointed by the Hon ble High Court, it is evident that he visited the site and thereafter reported that no goods were in existence at the place - customs bonded premises. The Commissioner also indicated that the FIR has been lodged with the Police, which is under investigation. 37. I further find the conduct of the importer also to be dubious as initially he filed bill of entry for warehousing on 4.7.2016. Thereafter, after about 15 days, he has filed req ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
