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TMI Blog2024 (8) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant-custodian pertained to the conditions mentioned in Regulation 5 and the discrepancies were found at the time of renewal could be because of certain new requirements, which should have arisen between the period of issue of custodianship and the application for renewal. It is found that the custodian has operated from the area, which is not notified under Section 8, of the Customs Act, 1962. As regards Section 45, the appellant contends there is no allegation or incident, where there is any unauthorized clearance of goods from the approved premises of the CCSP nor there was any pilferage of goods alleged. Hence, imposition of penalty under Section 117 is not tenable - Learned Commissioner has observed that the custodian is operating from an area beyond the notified area without approval from the proper officer as per the inquiry report. In these circumstances, operating from an area which is not notified tantamount to violation of Section 45 read with Section 7 and 8 of the Customs Act, 1962, since storing and clearing of the cargo from such unnotified area would be a violation of provisions of Section 45 of the Customs Act, 1962. Therefore, the imposition of penalty under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ICD, hence the notified area could not be identified separately and there is a need to undertake proper survey of the notified area. e) Several letters were addressed to the custodian by the Joint Commissioner for non-provision of sufficient furniture, infrastructure, connectivity etc. However, out of the fifteen issues raised, only five issues were attended. f) The no parking and regulatory parking space were not earmarked and there is no security in the parking area and the vehicles were parked as per the choice of the truck drivers and the cab drivers. g) Disposal of Section 48 Cargo was tardy and less than 10% of Section 48 goods have been put for auction for the last three years and only three lots have been reportedly sold. h) Containers containing seized goods as well as Section 48 goods were pending clearance and no serious efforts were put in to clear the containers and dispose the cargo. Seized cargo was not handed over to Customs Disposal Unit for disposal. 4. In view of the above, discrepancies/non-adherence of/to the provisions of HCCAR, the appellants were issued a show-cause notice and called upon as to why:- (i) The request of renewal of custodianship granted un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no express penalty is elsewhere provided for such contravention or failure, shall be liable to penalty not exceeding four lakhs rupees; the Commissioner held that they failed to comply with the provisions of HCCAR, hence, they are liable for penal action for violation of Section 45 read with Section 7 and 8 of Customs Act, 1962; it is difficult to understand how the Sections 7 and 8 of the Customs Act are relevant in the present case; further it is obvious that as per Section 45, the person in-charge with the custody of the goods shall keep proper account of the imported goods and ensure removal only with the permission of the proper officer and to prevent pilferage; there are no findings that the alleged laxity on their part had resulted in non-accountal of the goods and the goods had been removed from the notified area without permission of the proper officer or there were pilferage of the goods; merely because the Department entertains the view that they have failed to adhere to a few restrictions, the provisions of Section 45 could not have been invoked; they have mentioned in the proceedings before the Inquiry Officer and before the Commissioner that there was laxity in comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fered 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 [arrival manifest or import manifest] or, as the case may be, an import report to the proper officer under section 30 for the arrival of the conveyance in which the said goods were carried.] read with Section 7(aa) (Appointment of Customs Ports, Airports, etc. the places which alone shall be inland container depots or air freight stations for the unloading of imported goods and the loading of export goods or any class of such goods) Section 8 (Power to approve landing placed and specify limits of Customs Area). 9. The learned Authorised Representative (AR) for revenue has relied on the following case-laws: a) Chandrakanth Thakkar Vs. Commr. of Customs, Export-2015 (318) E.L.T. 57 (Bom.) b) SEC Service Ltd. Vs. CC, Tuticorin-2018 (11) G.S.T.L. 110 (Tri.-Chennai) 10. Heard both sides and perused the records. I find that the appellant, Container Corporation of India was given custodianship under HCCAR, 2009 as a Customs Cargo Service Provider (CCSP). The approval of CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962. As regards Section 45, the appellant contends there is no allegation or incident, where there is any unauthorized clearance of goods from the approved premises of the CCSP nor there was any pilferage of goods alleged. Hence, imposition of penalty under Section 117 is not tenable. However, I find that one of the points raised in the audit report of the custodian is with regard to the operations being conducted outside the notified area without any augmentation of notified area and nor there was any request for such amendment from the appellant-custodian. Learned Commissioner has observed that the custodian is operating from an area beyond the notified area without approval from the proper officer as per the inquiry report. In these circumstances, operating from an area which is not notified tantamount to violation of Section 45 read with Section 7 and 8 of the Customs Act, 1962, since storing and clearing of the cargo from such unnotified area would be a violation of provisions of Section 45 of the Customs Act, 1962. Therefore, I find that imposition of penalty under Section 117 is tenable. 12. I find that the discrepancies/non-adherence noticed on audit of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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