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TMI Blog2023 (10) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... e of proceeding is slightly different. In panchnama signed on 2.11.2011, proceedings are mentioned to have started at 12.00 hours and to have ended at 23.00 hours. Whereas for panchnama dated 3.11.2011, the proceedings are mentioned to have started at 12.18 hours on 2.11.2011 and to have got concluded at 00.30 on 3.11.2011. Thus, there is not much difference except 15 minutes/ while beginning one and half an hour time duration while ending the proceedings. Since examination ended post midnight, means date got changed by that time. This cannot be the reason to challenge or to doubt the veracity/correctness of the panchnama. The contention of appellant that it has no knowledge about seal nor any responsibility for the container lying in the customs area/shed is not sustainable. Objection about Customs seal - HELD THAT:- The appellant has not brought to notice that it was mandatory for the Customs Inspector to cut seal only in the presence of custodian of CONCOR on 2.11.2011. Admittedly, it was case of mis-declaration and undervaluation and till the request of appellant of joint survey on 15.10.2012 no pilferage was at all noticed. It is clear that presence of CONCOR was manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independent witnesses/panchas and Shri Sanjay Arora, proprietor M/s.Pico Trading Co. Representative of CHA, namely, Shri Nandan of Excellent Cargo was also initially present. In addition to declared products, there were found 45 other different kinds of branded products including ladies purses, branded liquor etc., found, the details of which were mentioned in the annexure to panchnama prepared during the said examination. The total value was assessed at Rs.3,24,93,750/-. Since contents of the container were highly misdeclared and undervalued, the examining officer seized the goods of the said container/alongwith the container and handed over the same to the Manager of Container Corporation of India Limited [CONCOR] (hereinafter referred as CONCOR). 4. After recording the statements of all concerned including that of proprietor of importer, Shipping line personnel, CHA and his representative, officers of CONCOR, overseas enquiries were also made in the matter. Based thereupon show cause notice bearing C.No.VIII/ICD/10/TKD/SHB-Imp/Inv/31 Cont./111/2012/Pt.III/25266 dated 5.12.2015 was served upon 17 noticees including CONCOR, the present appellant. It has been proposed that the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by police and enquiry held by DIG Commissioner and nothing was found against CONCOR. The order under challenge is set aside accordingly prayed to be set aside and appeal is prayed to be allowed. 9. While rebutting the submissions made on behalf of appellant, ld.DR has mentioned that examination of the container No.CLHU 8612196 and contents therein was conducted in the presence of independent witnesses with the representatives of all concerned i.e. the representative from shippingline of CHA of importer. A proper inventory of goods found stuffed into the container was prepared in their presence. The contents were found contrary to the declarations in Bill of Entry. Even second time examination of the said container on 15.10.2012 when customer s seal was found tampered, was also done in presence of all the above mentioned persons in the premises of appellant itself. Such proceedings were sufficient to fix the liability of custodian, CONCOR under Regulation 6 HCCAR,2009 and section 45 of Customs Act, 1962. It is impressed upon that the presence of custodian in examination proceeding is not mandatory except where there is a prior indication or doubt about pilferage of goods. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed over to the appellant/CONCOR for safe custody. (iii) This seizure was disputed by the appellant on the ground that there are two panchnamas of 2.11.2011 and 3.11.2011 which is sufficient to doubt the examination, proceedings and factum of customs seal. Also none of the panchnamas bear signature of appellant nor its representative. (iv) On 1.6.2012, when the container was found to be affixed with seal No.344378, Department alleged tampering of seal on the container lying in the customs area and also that it was found at different location. (v) The appellant on 15.10.2012 requested for a joint survey of the said container which was conducted in the presence of the Insurance Surveyor of the Appellant. (vi) In the joint survey the container was found to contain goods worth of only Rs.2,35,000/- as contrary to such number of variety of goods as were assessed at Rs.3,24,93,750/- on 2.11.2011. (vii) The inspecting team thus formed an opinion that the remaining goods had been pilfered. (viii) To safeguard itself the appellant lodged an FIR with Delhi Police on 17.10.2012, reporting loss/theft of goods which were found missing from container. 12. From the above admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) be responsible for the safety and security of imported and export goods under its custody. (j) to (p) ---------- (q) abide by all the provisions of the Act and the rules, regulations, notifications and orders issued thereunder. 14. Meaning of both these provisions has been discussed by this Tribunal in the case of M/s.Continental Warehousing Corporation (Nhava Seva) Ltd. vs. Principal Commissioner of Customs, Chennai-2021 (12) TMI 745 as under: 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) prescribes the role of the person who is given the custody of the imported goods, and Section 45 (3) speaks of the consequences in case such imported goods are pilfered while in custody of the approved person, which makes such person liable to pay duty at the prevailing rate. This means that until 29.03.2018 (ie., the date of amendment), the custodian of the imported goods had no authority at all to release the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. To our opinion, this cannot be the reason to challenge or to doubt the veracity/correctness of the panchnama. We also observe that only one out of the two panchnamas bear signatures of Customs Inspector, namely, Rakesh Kumar. Hence this panchnama can be held as the one drawn at the relevant time. As already observed above that examination which started in afternoon of 2.11.2011 continued till its midnight i.e. early morning of 3.11.2011, the plea taken about date is not at all relevant to doubt the panchnama which bears signatures of all concerned. On perusal of panchnama, it is amply clear that after such inspection of container on 02/03/11.2011 the container was resealed with new Customs seal No.594385 and was handed over to the manager of CONCOR, the appellant for the safe custody. This fact is also coming out from the cross examination of Customs Inspector, Shri Rajesh Kumar. The letter dated 02.11.2011 also corroborates the handing over the container with said seal to CONCOR appellant. The contention of appellant that it has no knowledge about seal nor any responsibility for the container lying in the customs area/shed is not sustainable. 17. Coming to the issue of obj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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