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TMI Blog2025 (1) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... VERSUS THE COMMISSIONER OF CUSTOMS [2024 (9) TMI 1503 - DELHI HIGH COURT], where the learned Division Bench upheld the order of the Tribunal in CONTAINER CORPORATION OF INDIA LTD. VERSUS COMMISSIONER OF CUSTOMS (EXPORTS) , NEW DELHI [2023 (10) TMI 758 - CESTAT NEW DELHI] holding that the goods got pilfered and container seal found tampered when the goods were not still cleared. It was held that as per Section 45, the custodian is burdened with the responsibility of safe custody of imported goods, unless and until the goods are cleared either for home consumption or for being warehoused. After the first check was ordered by the appraising officer, the shed officer had raised the objection in respect of the goods contained in the container ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation of India Ltd. [The appellant] has challenged the order-in appeal No.CC(A)CUS/D-II/ICD-TKD/1411/2019-20 dated 27.02.2020 confirming the duty demand along with interest and penalty by virtue of Section 45 of the Customs Act, 1962 [The Act] read with Handling of Cargo in Customs Areas Regulations, 2009 [The Regulations]. 2. Intelligence was gathered that two Containers containing mis-declared and restricted goods belonging to M/s. Shanker Impex were lying in ICD, Tughlakabad, New Delhi since June, 2010. On examination/investigation by the DRI, it was revealed that two Containers bearing No.GLDU 7380644 and CLHU 8304336 were lying in ICD, Tughlakabad for over three years. Bill of Entry [BE] No. 2092589 dated 25.06.2010 was filed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required NOC/Approval from Chief Controller of Explosive and that they applied for NOC, which was rejected. He also admitted that they had ordered for refrigerant Gas 410 but by mistake, the shipper had exported R-22 gas cylinders in the two containers. 5. Show cause notice dated 18.12.2013 was issued under Section 124 of the Act, demanding customs duty amounting to Rs.5,54,566 along with interest and penalty of Rs.1,00,000/- from the appellant among other persons under Section 28 and Section 45 of the Act read with the Regulations, 2009. On adjudication, the Adjudicating Authority held that the goods are liable for confiscation under Section 111 (d) of the Act. Since the goods have been removed from CONCOR Warehouse during their custody, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is ample evidence to prove that pilferage or loss of cargo did take place while it was in the custody of the appellant. They cannot shift the blame on CISF as in terms of section 45 of the Act and the Regulations the liability to discharge the duty is fastened on the custodian. He also submitted that mis-declaration of the goods have been fully investigated and the modus operandi of using dummy importer M/s. Shanker Impex for misdeclaring description and value of goods while the real importers Rohit Sakhuja and Ajit Singh Chadha stayed behind the bars for running the illegal activities. He, accordingly, prayed that the appeal filed may be rejected and the impugned order may be affirmed. 9. The basic issue to be considered is whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso prescribes the conditions and responsibilities of the persons handling in import and export cargo in Inland Container Depot. Regulation 6 thereof specifically lays down the responsibilities of Customs Cargo Service Provider. Regulation 6(1)(f) lays down that such service provider shall not permit the goods to be removed from the customs area except under and in accordance with the permission in writing of the Superintendent of Customs or Appraiser. Regulation 6(i) provides that Customs Cargo Service Provider shall be responsible for the safety and security of the imported and export goods under its custody. As per Regulation 6(j) Customs Cargo Service Provider shall be liable to pay duty on goods pilfered after entry thereof in the cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive that no evidence has been placed on record by the appellant that when the goods arrived in their custody the container was without any seal or the seal was broken. The plea taken by the appellant that the goods were in deployment of CISF has already been dealt by the Delhi High Court to say that the appellant cannot escape such burden by shifting its responsibility upon the CISF. The appellant has been held to be the custodian of the imported goods and, therefore, in terms of Section 45 of the Act read with Regulation 6, they are liable to pay the customs duty and penalty as ordered by the Adjudicating Authority. 11. On the issue of time limit as prescribed under Section 28 of the Act, it is seen that the appellant vide their letter d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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