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TMI Blog2009 (7) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... mport) in exercise of powers conferred under section 45(1) of the Customs Act, 1962 (hereinafter referred to as "the Customs Act") had approved MbPT as a custodian of the area notified under section 8 of the Customs Act for statutory duties and responsibility prescribed under section 45(2) and 45(3) of the Customs Act. 3. The petitioners are a body corporate under the Section 5 of Port Trust Act. The Port Trust Act specifies under Section 42 the performance of service by the Board or other persons. We may gainfully refer to the provisions of Section 42(1) of the Port Trust Act. "42. Performance of services by Board or other person. - (1) A Board shall have power to undertake the following services :- (a) landing, shipping or transhipping passengers and goods between vessels in the port and the wharves, piers, guays or docks belonging to or in the possession of the Board; (b) receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises; (c) carrying passengers by rail or by other means within the limits of the port or port approaches, subject to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loaded in a customs area shall remain in the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force, - (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer. (3) Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilfered after unloading thereof in a customs area while in the custody of a person referred to in sub-section (1), that person shall be liable to pay duty on such goods at the rate prevailing on the date of delivery of an import manifest or, as the case may be, n import report to the proper officer under Section 30 for the arrival of the conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 of the Customs Act confers power on the authorities set out therein to remit customs duty on goods which have been lost or destroyed at any time before clearance for home consumption or otherwise as a result of pilferage. It is therefore clear that the duty under Section 12 of the Customs Act is leviable on the goods. Customs duty is payable by an importer considering Section 17 of the Customs Act. Only in the situation covered by Section 13 of the Customs Act, customs duty is not payable and in the situation covered by Section 23 there is a power to remit the duty. Under Section 45(3) of the Customs Act, insofar as the goods are concerned, the duty as noted under Section 13 of the Customs Act, is not payable by the importer but has to be paid by the person in whose custody they have been given. The question therefore is whether the person referred to in Section 45(1), 45(2) and 45(3) of the Customs Act includes a body like the petitioners. We may note that Section 45(3) of the Customs Act has been introduced for the first time with effect from 26th May 1995. Before Section 45(3) was introduced, no duty could be recovered in respect of the pilfered goods including of an approve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods which are taken charge is that of a bailee under Sections 151, 152 and 161 of the Contract Act subject to what is set out therein. 13. Thus, considering the scheme of the Customs Act and the Port Trust Act, can the Port Trust, which is a body corporate under the Port Trust Act and a local body, be saddled with the liability of duty in respect of pilfered goods, for which in law it is liable to the importer as a bailee under Section 43 of the Port Trust Act. An importer, if the pilfered goods are recovered, has to pay the duty. In the case of a Port Trust, if the goods are pilfered, the Port Trust as a bailee of the goods has to pay the value to the importer. Is it possible to contend on the one hand that the Port Trust is liable to pay the value of the goods lost to the importer and, at the same time, considering the provisions of Section 13 of the Customs Act, also the liability to pay duty. The importer receives from the Port Trust compensation by way damages and not the goods and that after paying such compensation to the importer, is the Port Trust, apart from that, also liable for payment of duty to the Government of India. Though the Port Trust is a statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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