TMI Blog1988 (4) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... as been caused to the appellant by the destruction of the imported goods from their custody and possession. It is not possible for this Court while hearing the appeal under Section 130-E of the Customs Act against the order of the Appellate Tribunal to ascertain and determine the money value of the imported goods which have been lost or destroyed from the possession and custody of the Customs authorities. The appellant may take appropriate proceedings for determination of the damages and for recovery of the same in accordance with law. - 4102 of 1984 - - - Dated:- 19-4-1988 - R.S. Pathak, C.J., Ranganath Misra and B.C. Ray, JJ. ADVOCATES : Mr. Harish N. Salve and Mr. N.D. Garg, for the Appellant. Mr. B. Datta, Additional Solicitor General, Mr. R.P. Srivastava, Mr. D.N. Mukherjee and Ms. S. Relan with him, for the Respondents. [Judgment per : Ranganath Misra, 3. for self and R.S. Pathak, C.J.]. - We have had the benefit of reading the judgment proposed by my learned Brother Ray, J. We agree with the conclusion that the respondent No. 1 is liable for the loss or damage to the goods and would like to briefly indicate the reasons for such conclusion. 2. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been joined as resondent No. 2 to this appeal. 3. In view of the order waiving the demand of redemption fine and the appellants agreeing to pay the demand of appropriate duty as directed by the Tribunal, the only question that survives for examination is as to the availability of the goods return whereof has to be made to the appellants and in case the whole or part of the goods is not traceable, in what way the direction of the Tribunal for return of the goods has to be worked out. It is not disputed that 58 bales of the goods in question had been received, nor is there any dispute that the entire goods had been confiscated under the Act. Section 45 of the Act provides :- 45. Restriction on custody and removal of imported goods. - (1) Save as otherwise provided in any law for the time being force, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Collector 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reception of evidence. This proceeding before us is thus not appropriate for looking into this part of the grievance. A situation has not arisen where the order of the Tribunal as modified by this Court for the return of the goods cannot be fully given effect to. We think it appropriate to require the Tribunal to finally dispose of this question. Appellants counsel has relied upon a decision of this Court in State of Bombay (now Gujarat) v. Memon Mahomed Haji Hasam -(1) 1967 (3) S.C.R. 938. As the matter is being left open to be dealt with by the Tribunal, we do not propose to refer to this decision at any length. The Tribunal would give reasonable opportunity to the appellants as also the two respondents in the matter of adjudication of this aspect of the dispute. In case, the goods are not finally traceable and the liability to account for the goods is fixed in the hands of one or both of the respondents, the Tribunal would do well to examine and decide what amount of compensation in lieu of the goods should be payable to the appellants. This should be done within three months from today. Costs to be in the discretion of the Tribunal. [Judgment per : B.C. Ray, J.]. - This ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the minimum wool content is 80% in each bale . These documents were transferred to the appellant by the State Trading Corporation (in short STC) on High Sea Sales basis. The appellant imported 58 bales of woollen rags through the STC and in order to have the same released filed the bill of entry stating the goods as woollen rags on the basis of the aforesaid documents of the foreign suppliers. The goods however on testing the same drawn from the said consignment by the Customs authorities were found to have wool content only 6 to 10% and acrylic fibre contents in the rags were about 60 to 70% besides other synthetic fibres. It appeared to the Customs authorities that the imported rags were acrylic rags and not woollen rags. A show-cause notice was issued to the appellant on 2-1-1980 that the goods imported were in contravention of clause 3(1) of Imports (Control) Order, 1955 as amended read with Section 3 of the Imports and Exports (Control) Act, 1947 as amended and calling upon the appellant to show cause why the goods (58 bales of woollen rags) be not confiscated under Section 111(d) and 111 (m) read with Section 11 of the Customs Act, 1962 and why penalty be not imposed under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember, 1986 to the following effect :- Two questions arise, one relating to the demand of duty and the other levy of penalty. On the facts, we are satisfied and the learned Addl. Solicitor General having agreed that there is no scope for levying of penalty. The demand of penalty, is therefore, waived and so far as duty is concerned, Mr. Salve agrees that the duty as demanded is payable and will be paid. The only difficulty is about delivery of- the goods imported. Notice has been issued to the Port Trust Authorities and it is said to have been served, but there is no appearance on behalf of the Port Trust. Mr. Salve suggest that steps should be taken first to trace the goods. The Petitioner would pay the duty as demanded and take delivery of the materials. The matter be listed on 23rd January, 1987, and the Port Trust may be again notified of this date, so that further orders may be passed. The Port Trust will disclose the Court the location of the goods. In accordance with the directions contained in the said order the Port Trust Authorities in their counter-affidavit sworn by one Girindra Bhuson Chakraborty, the Commercial Supervisor, Calcutta Port Trust on 18-3-1987 spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f useless sweep waste of nil market value. 11. It has strenuously been contended on behalf of the appellant that the appellant is prepared to pay the customs duty as demanded by the Customs authorities in due compliance of the order of this Court and to take delivery of the goods imported but as the goods have already been lost and are not traceable from the control and custody of the Customs authorities, the Customs authorities are liable to pay the value of 39 bales of woollen rags on C.I.F. basis. It was on the other hand submitted on behalf of the Customs authorities that the value of the imported goods cannot be determined in this appeal by this Court as it requires consideration of facts and the only remedy for the appellant is to bring a suit for determination of such issue. It was also tried to be contended that since the goods imported were kept in the dock, it is the responsibility of the Port Trust to indemnify the appellant for the loss of the imported goods. 12. After considering the submissions of the learned counsels and also considering the facts and circumstances of the case there is no manner of doubt that the goods were confiscated by the Collector of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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